Gorham House

National Labor Relations Board - Board Decisions

Dec 28, 2000

332 N.L.R.B. 1556 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1556
Gorham House, Inc. d/b/a Gorham House and Maine
State Employees Association, Service Employees
International Union, Local 1989. Case 1–CA–
38372
December 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
Pursuant to a charge filed on August 14, 2000, and an
amended charge filed September 25, 2000, the General
Counsel of the National Labor Relations Board issued a
complaint on October 11, 2000, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing the Union’s re-
quest to bargain following the Union’s certification in
Case 1–RC–20984. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On November 3, 2000, the General Counsel filed a
Motion for Summary Judgment. On November 6, 2000,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of the Board’s inclusion of charge nurses in the
appropriate unit in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1
We also find there are no factual issues warranting a
hearing regarding the Union’s request for information.
The complaint alleges, and the Respondent admits, that
the Union requested the following information from the
Respondent by letter of July 28, 2000, and again by letter
of September 14, 2000:2

1 Member Hurtgen did not participate in the underlying representa-
tion proceeding. He finds, however, that the Respondent has not raised
any new matters that are properly litigable in this unfair labor practice
proceeding.
1. A list of current employees including their names,
dates of hire, rates of pay, job classification, last known
address, phone number, date of completion of any pro-
bationary period, and any records of discipline;
2. A copy of all current company policies which con-
cern or relate to wages, hours, and working conditions;
3. A copy of all company fringe benefit plans (includ-
ing the plan document and summary plan description)
including pension, profit sharing, severance, stock in-
centive, vacation, training, legal services, child care or
any other plans which relate to the employees; and
4. Copies of all current job descriptions.
It is well established that the foregoing type of com-
pensation and employment information sought by the
Union is presumptively relevant for purposes of collec-
tive bargaining and must be furnished on request unless
its relevance is rebutted.3 The Respondent has not at-
tempted to rebut the relevance of the information re-
quested by the Union. Instead, in its answer, the Re-
spondent relies solely on its challenge to the Union’s
certification as the basis for its denial that it has a duty to
provide the Union with the requested information. We,
therefore find that no material issues of fact exist with
regard to the Respondent’s refusal to furnish the informa-
tion sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment, and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
requested.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Gorham House, Inc. d/b/a Gorham
House, a corporation, with an office and a place of busi-
ness in Gorham, Maine, has been engaged in the opera-
tion of a nursing home. During the 12-month period
preceding the issuance of the compliant, the Respondent,
in conducting its business operations, derived gross reve-
nues in excess of $100,000. During the 12-month period
preceding the issuance of the compliant, the Respondent,
in conducting its business operations, purchased and re-
2 In its answer, the Respondent failed to address pars. 12(c) and
13(c) of the complaint, alleging that the Respondent has failed and
refused to furnish the Union with the requested information. Therefore,
in accordance with Sec. 102.20 of the Board’s Rules, we deem these
complaint allegations to be admitted to be true.
3 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp., 233 NLRB 109 (1077).
332 NLRB No. 151
GORHAM HOUSE, INC. 1557
ceived at its Gorham facility goods valued in excess of
$5000 directly from points outside the State of Maine.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and a health care institution within the meaning
of Section 2(14) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 20, 1999, the Union
was certified on July 26, 2000, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

All full-time, regular part-time, and per diem occupa-
tional therapists, social workers, registered nurses
(RNs), licensed practical nurses, Lincoln Care manag-
ers/RNs, charge nurses, certified nursing assistants,
personal care attendants, certified medications techni-
cians, activities coordinators, transportation coordina-
tors, transportation assistants, cooks, lead cooks, dietary
aides, wait staff, staffing coordinator, receptionists,
maintenance employees, housekeeping and laundry
employees, data entry employees, and child care teach-
ers, but excluding all other employees, guards and su-
pervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since July 28, 2000, the Union has requested the Re-
spondent to bargain and to furnish information, and,
since July 28, 2000, the Respondent has refused. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after July 28, 2000, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit and to fur-
nish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.

4 The Respondent’s answer states that it is without sufficient infor-
mation to form a belief as to the truth of the complaint allegation that
the Union is a labor organization under Sec. 2(5) of the Act, and so
denies this allegation. This denial, however, does not raise an issue
warranting a hearing. The Regional Director found in his Decision and
Direction of Election that the Union is a labor organization, and the
Respondent did not challenge this finding in the underlying representa-
tion hearing.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement. We also shall order the Respon-
dent to furnish the Union the information requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Gorham House, Inc. d/b/a Gorham House,
Gorham, Maine, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with the Maine State Employ-
ees Association, Service Employees International Union,
Local 1989, as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to
furnish the Union information that is relevant and neces-
sary to its role as the exclusive bargaining representative
of the unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a). On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:

All full-time, regular part-time, and per diem occupa-
tional therapists, social workers, registered nurses
(RNs), licensed practical nurses, Lincoln Care manag-
ers/RNs, charge nurses, certified nursing assistants,
personal care attendants, certified medications techni-
cians, activities coordinators, transportation coordina-
tors, transportation assistants, cooks, lead cooks, dietary
aides, wait staff, staffing coordinator, receptionists,
maintenance employees, housekeeping and laundry
employees, data entry employees, and child care teach-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1558
ers, but excluding all other employees, guards and su-
pervisors as defined in the Act.

(b) Furnish the Union the following information it re-
quested on July 28, 2000: (1) a list of current employees
including their names, dates of hire, rates of pay, job
classification, last known address, phone number, date of
completion of any probationary period, and any records
of discipline; (2) a copy of all current company policies
which concern or relate to wages, hours, and working
conditions; (3) A copy of all company fringe benefit
plans (including the plan document and summary plan
description) including pension, profit sharing, severance,
stock incentive, vacation, training, legal services, child
care, or any other plans which relate to the employees;
and (4) copies of all current job descriptions.
(c) Within 14 days after service by the Region, post at
its facility in Gorham, Maine, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 1 after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 28, 2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

5 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Maine State
Employees Association, Service Employees International
Union, Local 1989, as the exclusive representative of the
employees in the bargaining unit, and WE WILL NOT
refuse to furnish the Union information that is relevant
and necessary to its role as the exclusive bargaining rep-
resentative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

All full-time, regular part-time, and per diem occupa-
tional therapists, social workers, registered nurses
(RNs), licensed practical nurses, Lincoln Care manag-
ers/RNs, charge nurses, certified nursing assistants,
personal care attendants, certified medications techni-
cians, activities coordinators, transportation coordina-
tors, transportation assistants, cooks, lead cooks, dietary
aides, wait staff, staffing coordinator, receptionists,
maintenance employees, housekeeping and laundry
employees, data entry employees, and child care teach-
ers, but excluding all other employees, guards and su-
pervisors as defined in the Act.

WE WILL furnish the Union the following information
it requested on July 28, 2000: (1) a list of current em-
ployees including their names, dates of hire, rates of pay,
job classification, last known address, phone number,
date of completion of any probationary period, and any
records of discipline; (2) a copy of all current company
policies which concern or relate to wages, hours, and
working conditions; (3) A copy of all company fringe
benefit plans (including the plan document and summary
plan description) including pension, profit sharing, sev-
erance, stock incentive, vacation, training, legal services,
child care or any other plans which relate to the employ-
ees; and (4) copies of all current job descriptions.

GORHAM HOUSE, INC.