CHS Community Health Systems, Inc. d/b/a

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 998 (N.L.R.B. 2002)

998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CHS Community Health Systems, Inc., d/b/a Mi m­
bres Memorial Hospital and Nursing Home and
United Steelworkers of America, District 12,
Subdistrict 2, AFL–CIO, CLC. Cases 28–CA–
15948 and 28–CA–16291
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On August 2, 2000, Administrative Law Judge James
L. Rose issued the attached decision. The General Coun­
sel and the Respondent each filed exceptions, a support­
ing brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
Contrary to our colleague, we find that the judge cor­
rectly dismissed the allegation that the Respondent, in
March 1999, unlawfully changed its overtime policy
from voluntary to mandatory. We assume arguendo that
overtime had been voluntary and that the Respondent
now said that overtime would be mandatory. After say­
ing this, the Respondent offered to discuss the matter of
overtime with the Union. It has not been shown that em­
ployees were actually forced to work overtime before the
Respondent made this offer. As a result of these discus­
sions, the Respondent, on April 29, issued a new memo­
randum regarding overtime. It is not alleged that this
new memorandum was contrary to the agreement that
was reached, and it is not alleged that this memorandum
1 The General Counsel and the Respondent have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 We agree with the judge’s finding in sec. III,B,3 of his attached de­
cision that the Respondent did not withdraw recognition of the Union
as the bargaining representative of the unit employees. Consequently,
we find that the judge’s recommended general affirmative bargaining
order in par. 2(b) of his recommended Order is not necessary to remedy
the Respondent’s unlawful unilateral changes in terms and conditions
of employment and failure to provide the Union with certain requested
information. We shall modify the judge’s recommended Order accord­
ingly. See, e.g. Chelsea Place, 336 NLRB 1050 (2001) (unilateral
change in term and condition of employment, but no withdrawal of
recognition; no bargaining order); Eugene Iovine, Inc., 328 NLRB 294
(1999).
was a unilateral change.3 On the contrary, the Union’s
concern appears to be that Respondent did not thereafter
adhere to the memorandum. However, the General
Counsel does not allege, as unlawful, any such non-
adherence to the memorandum.
We recognize that, in general, an employer’s offer to
discuss a unilateral change with the Union after it is im­
plemented will not be a defense to the unilateral change.
However, in the instant case, the Respondent discussed
the change with the Union before it was implemented,
and an agreement was reached. In these circumstances,
we see no warrant for the finding of a violation and we
see no need for a remedial order. Accordingly, we affirm
the judge’s dismissal of this allegation.
We also disagree with our colleague’s view that the
Respondent unlawfully issued a new policy manual.
The dissent does not challenge the proposition that the
mere creation of a manual is not itself a change in work­
ing conditions. Rather, the dissent seeks to show that
Respondent published the manual to employees. In our
view, the General Counsel has not established publica­
tion by Respondent. The only fact supporting such pub­
lication is that employee Sylvia Estrada saw the manual
in the Respondent’s obstetrics department and was told
that it would be permissible for her and others to look
through the manual or copy it. However, Estrada did not
testify as to what action, if any, she took in response to
what she was told. Nor did any other employee testify to
having seen the manual or having been advised that it
was permissible to look through it or copy it.4 In these
circumstances, we find that the evidence adduced on this
point is insufficient to show that the manual was pub­
lished. Thus, the General Counsel has failed to carry his
burden of proof with respect to this allegation, which we
therefore dismiss.
ORDER
The National Labor Relations Board orders that the
Respondent, CHS Community Health Systems, Inc.,
d/b/a Mimbres Memorial Hospital and Nursing Home,
Deming, New Mexico, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
3 The complaint alleges a unilateral charge in March, not April.
4 Our colleague cites then-director of Human Resources Duffey’s
acknowledgement that the Respondent distributed new policy manuals
before receiving the Union’s letter requesting a copy. Duffey, how-
ever, did not say that these manuals were distributed to employees.
This testimony is consistent with the likelihood that at least some of the
Respondent’s supervisors and officials had received copies of the man­
ual, but that they had not been distributed to unit employees.
In sum, the General Counsel has not established distribution to em­
ployees.
337 NLRB No. 159
MIMBRES MEMORIAL HOSPITAL 999
(a) Refusing to bargain with the Union as the duly des­
ignated representative of its employees in appropriate
bargaining units by making certain unilateral changes in
terms and conditions of employment.
(b) Failing to furnish on request information necessary
and relevant to the Union’s duty as the employees’ bar-
gaining representative.
(c) 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 deemed nec­
essary to effectuate the policies of the Act.
(a) Upon request of the Union, rescind the unilateral
changes found herein, including those set forth in Ge n­
eral Counsel Exhibit 10 and the employee manual, to the
extent that they were changes in terms and conditions of
employment.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em­
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining units:
Unit A: All service, maintenance and clerical employ­
ees employed by the Respondent, but excluding techni­
cal and all other positions as well as supervisory,
managerial, and confidential employees as those terms
are defined under the National Labor Relations Act and
the National Labor Relations Board’s rules and regula­
tions.
Unit B: All technical employees employed by the Re­
spondent, but excluding service, maintenance, clerical,
and all other employees as well as supervisory, mana­
gerial, and confidential employees as those terms are
defined under the National Labor Relations Act and the
National Labor Relations Board’s rules and regulations.
(c) Provide the Union with a copy of the new policy
manual, as requested by the Union on March 23, 2000.
(d) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen­
dix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
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.”
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al­
tered, 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 its facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 1, 1999.
(e) 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.
MEMBER LIEBMAN, dissenting in part.
I agree with the majority’s affirmance of the judge’s
decision in all but two respects. Contrary to my col­
leagues, I would find that the Respondent violated Sec­
tion 8(a)(5) and (1) of the Act when it unilaterally
changed its overtime policy in March and April 1999,
and when it issued a new policy manual in March 2000.
In my view, the record here clearly supports finding both
violations.
The Overtime Policy
Paragraph 6(b) of the Consolidated Complaint alleges
that “[I]n or about March 1999, the Union was put on
notice for the first time, or otherwise acquired actual
knowledge, that . . . the Respondent, by [Chief Nursing
Officer] Karen O’Sullivan, changed its policy for the
Units regarding overtime work.”1
The judge found that it was difficult to tell whether the
Respondent had a policy of voluntary overtime, which
was changed to require mandatory overtime and if so,
whether the Respondent made the change without notice
to, and bargaining with, the Union. The judge found that
the Respondent agreed to discuss the matter with Union
representatives and agreed to some kind of overtime pol-
icy. However, he found that the record did not permit
him to conclude that the Respondent had made a unilat­
eral change. The judge erred by dismissing this allega­
tion.
The record here establishes that (1) the Respondent
unilaterally imposed a mandatory-overtime requirement;
(2) rescinded that requirement after Union representa­
tives objected and agreed to a new policy; but then (3)
1 The record establishes, and I would find, that the unilateral change
from voluntary overtime to mandatory overtime and the Respondent’s
subsequent failure to adhere to the agreed-upon resolution of employee
complaints about the changes (i.e., posted, rotating overtime) essen­
tially were litigated as a single unilateral change.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unilaterally abandoned the agreed-upon policy and reim­
posed mandatory overtime.
Diana Lopez, a Certified Nursing Assistant (CNA) and
employee member of the union’s negotiating team, testi­
fied that, before March 1999, the Respondent’s policy
was that overtime for CNAs was voluntary. Lopez,
whose testimony was neither contradicted nor discred­
ited, recounted a brief discussion in March among
Muggs Johnson (whom she identified as a shift supervi­
sory nurse), Lopez, and 4 other CNAs.2 Johnson told the
others that the Respondent was short of help for the next
shift and someone would have to stay overtime. Johnson
stated that if no one volunteered, she would have one of
them do mandatory overtime. Otherwise, Lopez and the
other 4 CNAs would be written up or perhaps terminated.
Lopez testified that the Respondent had never before
made such a demand.3
Shortly after this meeting, Lopez told Garry Kava­
naugh, the employee Union representative, that overtime
had become mandatory.4 Kavanaugh testified that he
spoke to O’Sullivan about the issue and that she said “too
many people were calling in sick so they had to make
[overtime] mandatory.” Soon afterward, Kavanaugh and
Lopez met with Lynn Duffey, who was then the Respon­
dent’s director of human resources, scheduler Della
Pacheco, and O’Sullivan to discuss the assignment of
overtime. Kavanaugh suggested that overtime be as-
signed on a voluntary, rotating basis and that employees
be given 2 weeks’ advance notice. Kavanaugh, whose
testimony on this point was also neither discredited nor
2 Lopez’ testimony describing Johnson as a supervisor was never
contradicted. Moreover, Johnson told the CNAs present that shewould
have one of the CNAs perform mandatory overtime and that the CNAs
would be written up or terminated. Under the circumstances, it appears
that Johnson was acting with at least apparent authority from the Re­
spondent, whether or not she was actually a supervisor. See, e.g. Mar-
Jam Supply Co., 337 NLRB 337 (2001) (employer’s operations man­
ager was agent under Sec. 2(13) of Act, regardless of supervisory status
under Sec. 2(11)). In any case, as shown below, O’Sullivan explained
the reasons for compelling overtime to Kavanaugh, thereby confirming
Lopez’s report and effectively ratifying Johnson’s actions.
3 My colleagues assume that overtime had been voluntary, but state
that there is no evidence that employees were actually forced to work
overtime after Johnson spoke with Lopez and the other employees.
While Lopez did not identify which employees worked on the next
shift, it seems indisputable, given the threat of discipline and discharge,
that any overtime worked cannot be regarded as voluntary.
4 Kavanaugh was a de facto steward, if not an appointed one. He
served on the Union’s negotiating committee, employees brought their
concerns about hours and terms and conditions of employment, includ­
ing layoffs and discharges, to him, and managers met with him on
several occasions to address the employees’ concerns. In fact, at a
subsequent negotiating session, when the Union accused the Respon­
dent of unilaterally issuing the rotating overtime policy set forth below,
the Respondent asserted that it had been negotiated when Duffey and
O’Sullivan met with Kavanaugh.
contradicted, stated that Duffey and O’Sullivan agreed to
this suggestion. When Lopez left the meeting, she un­
derstood that employees would have 2 weeks’ advance
notice of overtime, their work schedules would be noted
accordingly, and overtime assignments would rotate
among employees.
On April 29, O’Sullivan issued the following memo­
randum to all of the Respondent’s Certified Nursing As­
sistants:
On your schedule you will notice the letters “O.T.” by
your name on certain days. This is the rotation sched­
ule for overtime, if needed. Della has scheduled to be
fair to all. Please be sure you arrange baby sitters or
other needed rides, etc. on those days. We have to
maintain coverage at the Nursing Home and really need
this coverage.
However, Kavanaugh and Lopez testified that by about
1 month after the meeting, the Respondent was no longer
giving advance notice of overtime, was keeping the rele­
vant list in a place inaccessible to the CNAs, and was
choosing only certain CNAs for overtime work. Further,
Kavanaugh testified that, before his March conversation
with Lopez, the Respondent never offered him the oppor­
tunity to discuss the overtime issue. Similarly, Union
staff representative Freddie Sanchez testified that the
Respondent never contacted the Union for its input re­
garding the overtime policy.
In sum, the evidence is uncontradicted and sufficient to
support the conclusion that the Respondent unilaterally
changed its voluntary overtime policy to a mandatory
one, and that it departed from its subsequent agreement
to schedule overtime on a rotational basis, thereby violat­
ing Section 8(a)(5) and (1) of the Act.
The Policy Manual
The General Counsel alleged that the Respondent
unlawfully issued a new policy manual and implemented
its provisions.5 The Respondent admitted that it “issued”
a new policy manual in January 2000. The judge found
that the Respondent created the new manual and imple­
mented its provisions, but that it did not “publish” the
manual to employees. He distinguished between the
creation of the manual and its publication, concluded that
the creation of a policy manual is not a term or condition
of employment, and dismissed this allegation. Even as-
5 The consolidated complaint, pars. 6(f) and 6(g), alleges, that the
Respondent “issued new policy manuals,” and “implemented the poli­
cies contained in the manual . . . .” The complaint further alleges that
the Union became aware of these acts in March 2000, but that the con-
duct itself occurred on dates unknown to the counsel for the General
Counsel, but known to the Respondent.
MIMBRES MEMORIAL HOSPITAL 1001
suming that there is a legally-significant difference be-
tween issuance and implementation (or creation and
promulgation), the judge clearly erred in finding that the
manual was not published to employees.
The evidence in support of this alleged violation is
conclusive. The Respondent admits that it issued the
new policy manual in January 2000. Duffey acknowl­
edged that in fact, the Respondent distributed new policy
manuals prior to receiving the Union’s March letter re-
questing a copy. The judge found that the manual con­
tains significant changes in terms and conditions of em­
ployment, which the Respondent unilaterally imple­
mented in violation of the Act.6 The judge also found
that the Respondent unlawfully refused to provide the
Union with a copy of the new manual when requested to
do so in March 2000. Against this backdrop, we should
consider the unrefuted testimony of certified nursing
assistant (CNA) Sylvia Estrada, who said that she first
saw the manual in the obstetrics department in January
2000 “on the desk on the—where we had our wall unit
with all the rest of the books.” Lopez testified that Duf­
fey and team leader Pam Baeza “told us to look through
it and we could get copies, we were free to get copies.”
(Emphasis added.) She further testified that “[Baeza]
just laid [the manual] down and said look at it, read it.”
Duffy and Baeza also told Estrada that employees could
make or get photocopies of the manual.
Clearly then, the manual was published to employees,
at least in obstetrics where Estrada worked, just as if it
had been posted on a bulletin board or made available at
a public library for borrowing, copying, or perusing. The
fact that only one employee was questioned at the hear­
ing about the manual’s issuance is not determinative, nor
is the fact that the Respondent did not distribute a copy
to each employee. Her testimony, which is not contra­
dicted, demo nstrates that the manual was made available
to employees with instructions to read it, and if desired,
copy it. That is publication, and necessarily under the
judge’s logic, issuance.7 Accordingly, I would reverse
the judge and find that the Respondent violated Section
8(a)(5) and (1) by issuing the policy manual in January
2000.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
6 The new policy manual includes changes in job postings and trans­
fers, attendance, drug screening, discipline and discharge, benefits,
holidays, education assistance, summer leave, performance evaluations,
overtime, and shift differential.
7 In view of the evidence that the manual in fact was published to
employees, I need not address whether issuance of the manual is inher­
ent in implementation of its contents.
NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with the Union as the
duly designated representative of our employees by uni­
laterally changing terms and conditions of employment.
WE WILL NOT refuse to furnish the Union with infor­
mation necessary and relevant to its duties as the
bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, upon request of the Union, rescind all unilat­
eral changes of terms and conditions of employment,
including those contained in the employee manual issued
in 2000.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ­
ment, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our
employees in the following bargaining units:
Unit A: All service, maintenance, and clerical employ­
ees employed by us, but excluding technical and all
other positions as well as supervisory, managerial, and
confidential employees as those terms are defined un­
der the National Labor Relations Act and the National
Labor Relations Board’s rules and regulations.
Unit B: All technical employees employed by us, but
excluding service, maintenance, clerical, and all other
employees as well as supervisory, managerial, and con­
fidential employees as those terms are defined under
the National Labor Relations Act and the National La­
bor Relations Board’s rules and regulations.
WE WILL provide the Union with a copy of the new
policy manual, as requested by the Union on March 23,
2000.
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CHS COMMUNITY HEALTH SYSTEMS, INC.,
d/b/a MIMBRES MEMORIAL HOSPITAL
AND NURSING HOME
Richard Smith and Jerome Schmidt, Esqs., for the General
Counsel.
Don T. Carmody, Esq., of Woodstock, New York, for the Re­
spondent.
Freddie Sanchez, of Tucson, Arizona, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Deming, New Mexico, on May 2 and 3,
2000, upon the General Counsel’s complaint which alleged that
the Respondent made several unilateral changes in terms and
conditions of employment, failed to furnish requested informa­
tion to the Charging Party and withdrew recognition from the
Charging Party, all in violation of Section 8(a)(5) of the Na­
tional Labor Relations Act.
The Respondent generally denied that it committed any vio­
lations of the Act, that some allegations are barred by Section
10(b) and that the Charging Party lost its status as the represen­
tative of a majority of employees.
On the record as a whole1 including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following
I. JURISDICTION
The Respondent is a corporation engaged in the business of
providing health care at an acute care hospital and nursing
home in Deming, New Mexico. In the course and conduct of
this business, the Respondent annually receives at its Deming,
New Mexico facility, goods, products, and materials valued in
excess of $50,000 directly from points outside the State of New
Mexico. The Respondent admits, and I conclude that it is an
employer engaged in interstate commerce within the meaning
of Sections 2(2), 2(6), and 2(7) of the Act and is a health care
institution within the meaning of Section 2(14).
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, District 12, Subdistrict 2,
AFL–CIO, CLC (the Union), is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR L ABOR PRACTICES
A. The Facts
Until March 13, 1996, when the Respondent purchased this
facility, the Mimbres Memorial Hospital and Nursing Center
was owned and operated by Luna County, New Mexico. It is
alleged, and admitted, that on July 18, 1995, the Union was
certified by the Public Employees Labor Relations Board of
1 Motions by the General Counsel and the Respondent to correct the
transcript in certain respects are granted.
New Mexico as the exclusive collective-bargaining representa­
tive in the following two units:
UNIT INCLUDED: Service, maintenance, and clerical posi­
tions.
UNIT EXCLUDED: Technical and all other positions as
well as supervisory, managerial, confidential as those terms
are defined under the Act and Board’s rules and regulations.
UNIT INCLUDED: Technical.
UNIT EXCLUDED: Service, maintenance, clerical, and all
others as well as supervisory, managerial, confidential as
those terms are defined under the Act and Board’s rules.2
First Luna County and then the Respondent, after March 13,
1996, engaged in negotiations with the Union for a collective-
bargaining agreement and have dealt with the Union concern­
ing grievance matters. To date no collective-bargaining agree­
ment has been reached although the parties have had 15 to 20
bargaining sessions, the last occurring on September 8, 1999.
The complaint alleges that beginning in March 1999, the Re­
spondent unilaterally changed terms and conditions of em­
ployment and thereby violated Section 8(a)(5) of the Act.
While not really contesting the facts concerning these alleged
unilateral changes, the Respondent denies it committed any
unfair labor practices and contends that the Union in fact lost its
status as the majority representative of the employees in the
above-described units because: no employee has ever become a
member of the Union (since the Union does not accept mem­
bership until a collective-bargaining agreement is reached);
negotiations over a 4-year period has produced no agreement;
there has been substantial employee turnover;3 the Union has
not communicated much with employees; and the employee
2 These unit descriptions were designated unit A and unit B in the
complaint and were grammatically altered, but not changed in sub-
stance. References to the “Act” and “Board” presumably mean the
New Mexico labor relations act and board. Counsel for the Respondent
conceded that unit B is appropriate but that unit A is not. Counsel for
the General Counsel contends that even if such a unit description would
not be the most appropriate, it is not inappropriate and is historical.
Neither party briefed the issue of appropriateness of the units certified
by the New Mexico Board. I conclude they are appropriate.
3 T his argument is assertedly based on documents the Respondent
has yet to submit for inclusion in the record. Counsel for the General
Counsel subpoenaed certain records which were not produced at the
hearing but which counsel for the Respondent represented would be
copied and submitted to the General Counsel forthwith. He requested
that he be allowed to submit employee status reports for the years 1997,
1998, 1999, and 2000 posthearing. As of the date the Respondent’s
brief was mailed, those documents have not been produced for inspec­
tion by the General Counsel or submitted to me. Nevertheless, counsel
for the Respondent moves that these documents be submitted and ad­
mitted into evidence at some future undisclosed date, to which counsel
for the General Counsel objects. The Respondent’s motion is denied.
No persuasive reason has been offered why, in 2 months following the
hearing, these documents have not been produced. On July 17, 2000,
counsel for the Respondent wrote the associate chief administrative law
judge that he had written counsel for the General Counsel asking that
he reconsider his opposition. This letter adds nothing of substance to
alter my ruling.
MIMBRES MEMORIAL HOSPITAL 1003
representative of the Union has dealt with the Respondent in
the absence of union officials.
B. Analysis and Concluding Findings
1. Unilateral changes 4
a. Absences and sick leave policy
On April 1, 1999,5 Miriam Stevens, administrator, and Karen
O’Sullivan, CNO, issued the following memorandum without
first consulting with any representative of the Union:
March 4, 1999. From this day on, ALL CNA’s (certified
nursing assistant[s]) who call in sick on week-ends and/or
Holiday periods must either come to the Nursing Home for
examination by the Nurse or bring a release to return to work
from a physician or practitioner in order for the time lost to be
an approved absence.
In addition, when any CNA has excessive absences, he or she
will be required to do the same procedure—either bring a
physician’s excuse or come to the Nursing Home for the ab­
sence to be approved. These staff members will be deter-
mined by the Charge Nurses with the approval of both the
CNO and the Administrator.
The employee must call in for him/herself—calls from a fam­
ily member/other[s] are not acceptable and the absence will
not be approved except in the case of a verifiable emergency.
All sick calls must be made to the Nurse in charge.
This memo represented a change in policy, according to the
undisputed testimony of Garry Kavanaugh (the Union’s princi­
pal representative among employees). Lynn Duffey, the Direc­
tor of Human Resources,6 confirmed that the memo was pub­
lished without consulting with the Union. Unquestionably, this
memo represented a unilateral change in the policy for absences
due to illness.
Similarly, on an unknown date, but apparently in October,
Nancy Wright, the director of nursing, issued the following
memo:
EFFECTIVE IMMEDIATELY, ANY EMPLOYEE THAT
CALLS OFF ON A SCHEDULED DAY OR WEEKEND
WILL BE SCHEDULED ANOTHER DAY AND THE
NEXT RESPECTIVE WEEKEND. FAILURE TO
REPORT TO WORK ON THESE RESCHEDULED DAYS
OR WEEKENDS WILL BE COUNTED AS AN
UNEXCUSED ABSENCE AND CORRECTIVE ACTION
WILL BE INITIATED.
I further conclude that manner in which one is allowed to
seek approval for an absence due to illness is a term and condi­
tion of employment within the meaning of NLRB v. Katz, 369
U.S. 736 (1962). Accordingly, the Respondent violated Section
8(a)(5) of the Act, by announcing changes in the absence and
sick leave policy.
4 At the hearing, counsel for the General Counsel withdrew par. 6(d)
relating to a change in pay for lunch periods.
5 All dates are in 1999, unless otherwise indicated.
6 Duffy resigned 2 weeks prior to the hearing.
b. Change in overtime policy
On April 29, O’Sullivan issued the following memorandum
to all CNA’s:
On your schedule you will notice the letters “O.T.” by your
name on certain days. This is the rotation schedule for over-
time, if needed. Della has scheduled to be fair to all. Please
be sure you arrange baby sitters or other needed rides, etc. on
those days. We have to maintain coverage at the Nursing
Home and really need this coverage.
Kavanaugh testified, without contradiction or objection, that
he was told by a certified nursing assistant that this represented
a change in policy—that prior to March overtime had been on a
voluntary basis.
Kavanaugh testified that he then went to O’Sullivan protest­
ing this change and asking if overtime could be voluntary. She
set up a meeting with him to discuss this matter, included in
which were Duffey and Diana Lopez, a certified nursing assis­
tant. At this meeting it was agreed that the possibility of work­
ing overtime was to be put on the schedule (which appears to
be the essence of the memo). Kavanaugh testified that this
policy did not work out, but he did not explain the particulars.
Lopez testified that the agreed to policy lasted about 1 month,
and then changed back. She testified, “They put it on one
schedule and the next schedule they never put our overtime.”
It is difficult to tell from Kavanaugh’s testimony whether in
fact the Respondent had an overtime policy which was changed
to mandatory, or if this was the case, whether the Respondent
did so without notice to and bargaining with the Union. It ap­
pears that the Respondent agreed to discuss this matter with
representatives of the Union and that they agreed to some kind
of an overtime policy. I cannot on this record conclude that the
Respondent made a unilateral change in terms and conditions of
overtime policy. I shall recommend that paragraph 6(b) be
dismissed.
c. Increased pay rate for new hires
It is alleged that in August, the Union first learned that the
Respondent increased the pay rate for new hires.7 This allega­
tion is based on the contention that some new hires were started
at a wage rate higher than incumbents in the same classifica­
tion. There is documentary evidence in support of this factual
contention, however, it also appears that even before the Union
was certified, the Respondent sometimes hired a new employee
at a wage rate greater than an individual already working in the
same classification.
For instance, records for 1996 show that Guadalupe Vega
was hired as a CNA on October 13, 1994. As of 1996 she had a
rate of $4.84 per hour, whereas Christine Udero was hired as a
CNA on November 3, 1995, and in 1996 had a rate of $5.25. It
is possible, but I conclude unlikely, that Udero was hired at the
same rate as Vega and given an increase that Vega did not
share. Thus, another document, styled “Union List” and dated
7 In evidence is a “Wage Administration Scale” effective December
28, 1997, which was apparently promulgated unilaterally, but well
before the 10(b) period here and in any event is not alleged violative of
Sec. 8(a)(5).
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 11, 1999 gives the hire dates, classifications, and cur-
rent rates of all represented employees. This shows that
Patricia Hand was hired as a CNA on June 22, 1999, and had an
hourly rate of $7, which is apparently her hire rate since her
date of employment was less than 2 months before the date of
the “Union List.”
Kavanaugh testified that he first learned that new employees
were being hired at greater rates than incumbents when x-ray
technician Neidin Lucero, who was hired on March 24, 1997,
and was being paid $13.71 per hour, complained that the Re­
spondent hired a new x-ray technician at a higher rate. In fact,
the records show that Monica Meza was hired on March 22,
1999, and was earning $15.48 (the maximum under the wage
administration scale).
Kavanaugh went to Duffey with this complaint, and they had
a 5-minute discussion, though he did not testify what, if any,
resolution was reached. He did testify that during the tenure of
Duffey’s predecessor (“At least a year and a half ago, even
longer.”) he met with her and other management personnel and
discussed grouping employees based on education, experience,
licensing, and so forth. Though unclear from the record, this
may have culminated in the wage administration scale of De­
cember 28, 1997, revised on October 27, 1999. This document
sets the minimum, midpoint and maximum rates for the various
job classifications.
While Kavanaugh did participate in discussions leading to
the grouping of employees, he testified that the Union never
agreed that new hires could be paid at rates greater than re­
ceived by incumbent employees in the same classification.
However, there is no contention that the pay rate given new
hires exceeded the maximum under the wage scale or that the
wage scale was itself created or revised in violation of the act.
Duffey confirmed that the Respondent sometimes hires new
employees at greater rates than old employees. She testified
that the chief financial officer told her that she should give new
hires an additional two percent for each year of experience.
She also gave additional pay based on other considerations,
particularly where she had to do so to fill a job vacancy.
Though I conclude that in fact the Respondent sometimes
hires new employees at rates greater than received by some old
employees in the same classification, I disagree that this prac­
tice was a unilateral change in terms and conditions of em­
ployment. First, I question that it is a term of employment that
new employees will not under any circumstances be hired at
rates greater than those of current employees. But see,
Langston Co., 304 NLRB 1022, 1067 (1991) (respondent im­
plemented its interim wage proposal prior to impasse and re­
tained the right to pay new employees more than its current
offer). Unlike Langston, there was here in effect a wage scale
and the new hires were paid within it, albeit sometimes hired on
at rates greater than the minimum.
Second, even if such is a term of employment, it is clear
from the record that the Respondent has always engaged in
such a practice. That Kavanaugh did not know of the practice,
does not make what occurred in 1999 a unilateral change. I
conclude that the Respondent’s hiring practices did not change
at any time within the Section 10(b) period (after January 29,
1999), and it did not violate the Act as alleged in paragraph
6(c).
d. Policy on payment for training courses
It is alleged that in mid-August, the Union first learned that
the Respondent had changed its policy to pay for employee
training and began requiring employees in the bargaining units
to pay for CPR classes and other training courses.
This allegation is based on the testimony of Kavanaugh to
the effect that in 1997 and 1998, he took training courses in
cardiopulmonary resuscitation for which the Respondent paid.
He testified, that he saw a notice on the bulletin board dated
“November 3, 1998” that CPR training would cost employees
$12. Kavanaugh testified that in November or December 1998,
he told Sanchez about the Respondent’s change in policy to
require employees to pay for classes. However, he also testi­
fied that he first saw the notice in mid-August 1999, and that
Sanchez first became involved with the Respondent’s employ­
ees in May 1999. I discredit Kavanaugh’s assertion that he first
saw the notice in mid-August. It is simply incredulous that a
notice would be posted for 9 months before Kavanaugh would
see it. I find, as he also testified, that he saw it about the time
it was posted and shortly thereafter notified some representative
of the Union.
The notice is for an event which occurred well beyond the
10(b) period here, which I conclude the Union knew about at
the time. I conclude that a finding concerning the Respondent’s
requiring employees to pay for training in November 1998 is
barred by Section 10(b) and that paragraph 6(e) should be dis­
missed.
e. Issuing a new policy manual
It is alleged, and denied, that in March 2000, the Respondent
issued a new policy manual. The Respondent agrees that a new
manual was in fact issued in January. There is an issue of
whether creating a policy manual (as distinguished from en-
forcing the employment policies therein) is a term or condition
of employment. There is no evidence that the manual was in
fact published to employees. To the contrary, in paragraph 7(a)
it is alleged that the Union requested a copy of the manual and
such was denied by the Respondent.
I conclude that the mere creation of a policy manual is not a
term or condition of employment and therefore the Respondent
did not violate Section 8(a)(5) by writing a new manual. Ac­
cordingly, I shall recommend that paragraph 6(f) be dismissed.
f. Instituting policy changes
It is alleged, and admitted, that the Respondent instituted
policy changes set forth in the manual (a three-page summary
of which is in evidence). There is no question that this was
done without consultation or bargaining with the Union. Duf­
fey so testified. Nor can there be any question that some of the
policies, at least, pertain to terms and conditions of employ­
ment. Accordingly, I conclude that by unilaterally instituting
the policy changes, the Respondent violated Section 8(a)(5) of
the Act.
MIMBRES MEMORIAL HOSPITAL 1005
2. Request for information
In paragraph 7 of the consolidated complaint it is alleged on
March 23, 2000, the Union requested a copy of the new policy
manual, which was denied. Duffey affirmed both the request
and the denial. Therefore, the only real question is whether the
manual is necessary and relevant to the Union in representing
bargaining unit employees. As I have concluded that manual
contained changes pertaining to terms and conditions of em­
ployment, it is clearly necessary and relevant to the Union in
order for it to perform its representative duties. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967). Accordingly, I conclude
that by refusing to furnish the information, the Respondent
violated Section 8(a)(5) of the Act.8
3. Withdrawal of recognition
It is alleged that on March 23, 2000, the Respondent with-
drew recognition of the Union as the bargaining representative
for unit employees. Although there are in evidence letters from
Sanchez to the Respondent’s counsel which went unanswered,
there is no evidence that the Respondent in fact withdrew rec­
ognition.
Sanchez testified that he has never received notice that the
Respondent was withdrawing recognition. When Sanchez spe­
cifically denied the factual basis of this allegation, counsel for
the General Counsel sought to clarify the complaint by stating,
“General Counsel is alleging as far as the withdrawal of recog­
nition is that the actions by Respondent amounted to a
constructive withdrawal of recognition of the union.” I
sustained the Respondent’s objection to the extent that the
General Counsel sought to amend the complaint from an
allegation of actual withdrawal of recognition to a constructive
withdrawal. On further clarification, counsel for the General
Counsel argues that the unilateral changes imply withdrawal of
recognition.
While I conclude that the Respondent did in fact fail in its
duty to bargain in certain respects, the record is devoid of evi­
dence that the Respondent withdrew recognition. I do not be­
lieve that committing such unfair labor practices as here neces­
sarily implies withdrawal of recognition. I therefore conclude
that the General Counsel failed to prove this allegation by a
preponderance of the credible evidence, and I will recommend
that paragraph 8 be dismissed.
8 That the Union now has a copy, having received one during the
hearing, is no defense to this allegation.
4. The loss of majority defense
In addition to its other defenses, the Respondent contends
that the Union lost its status as the majority representative of
unit employees, and therefore the refusal to bargain allegations
should be dismissed. In support of this contention, the Respon­
dent notes that no employee is a member of the Union, since
the Union does not accept employees into membership until a
collective-bargaining agreement has been reached; not very
many employees went to a union meeting in the fall of 1999;
and there has been a substantial turnover of employees (which I
conclude has not been established by any facts, even assuming
such is a relevant consideration). None of this tends to prove
that any employee, much less a majority, has renounced the
Union as his or her bargaining representative.
The General Counsel argues that the Board’s policy of de­
termining when, and under what circumstances, an employer
can lawfully withdraw recognition, as set forth in Celanese
Corp. of America, 95 NLRB 664 (1951), should be overruled. I
conclude that whatever merit there may be in the General
Counsel’s argument, the posture of this case does not warrant
reconsideration of the Celanese rules. The Respondent did not
in fact withdraw recognition and offered insufficient objective
evidence under the Celanese rules to support its contention that
a majority of employees rejected the Union as their representa­
tive, assuming such would be relevant to finding the unfair
labor practices here.
I conclude that there is insufficient evidence to rebut the pre­
sumption that the Union continues to be the designated bargain­
ing representative of a majority of its employees in the appro­
priate bargaining units. I further conclude that the facts here do
not excuse the Respondent from responsibility for the unfair
labor practices found.
IV. REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act, including rescinding the unilateral
changes found above and the employee manual issued in 2000
to the extent it contains changes in terms and conditions of
employment.
[Recommended Order omitted from publication.]