Community Health Services

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 398 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 33
398
Community Health Services, Inc. d/b/a Mimbres
Memorial Hospital and Nursing Home and
United Steelworkers of America, District 12,
Subdistrict 2, AFL–CIO, CLC. Cases 28–CA–
16762, 28–CA–17278, and 28–CA–17390
June 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On May 13, 2002, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed 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,1 findings, and conclusions and
to adopt the recommended Order.
The judge’s recommended Order includes a direction
that the Respondent, on request, bargain with the Union.
The Respondent excepts, contending that the issuance of
a bargaining order is not supported by the record.
We agree with the judge, for the reasons set forth in
Caterair International, 322 NLRB 64 (1996), that an
affirmative bargaining order is warranted as a remedy for
the Respondent’s unlawful refusal to bargain with the
Union in this case. We adhere to the view, reaffirmed in
Caterair, that an affirmative bargaining order is “the
traditional, appropriate remedy for an 8(a)(5) refusal to
bargain with the lawful collective-bargaining representa-
tive of an appropriate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.

1 In her decision, the judge denied Respondent’s motion to recon-
sider her ruling denying Respondent access to witness Sanchez’ witness
statements that were given in preparation for the hearing in an earlier
proceeding (Mimbres Memorial Hospital, 337 NLRB 998 (2002)).
Members Schaumber and Meisburg believe that in cases such as this
one where the witness gave testimony in an earlier proceeding in an-
other case involving the same parties, and the facts of the two cases are
related, the judge should have reviewed the requested witness state-
ments from the earlier proceeding in camera to determine their rele-
vance to the instant proceeding. However, since Respondent’s attorney
had reviewed the witness statements during the earlier hearing and
therefore presumably had knowledge of their contents, but failed to
make an offer of proof in the instant proceeding as to the specific rele-
vance of those witness statements to the instant proceeding, Members
Schaumber and Meisburg find that Respondent was not prejudiced by
the judge’s denial of its motion to reconsider her ruling.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). See also Marion Hospital Corp. v.
NLRB, 321 F.3d 1178 (D.C. Cir. 2003) (enforcing bar-
gaining order). In Vincent, the court summarized its re-
quirement that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’
Section 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” 209
F.3d at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
would require and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.2
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s refusal to recognize and bargain with the Un-
ion. At the same time, an affirmative bargaining order,
with its attendant bar to raising a question concerning the
Union’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of those
employees who may oppose continued union representa-
tion, because the duration of the order is no longer than is
reasonably necessary to remedy the ill effects of the vio-
lation.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to continue to delay bargaining
in the hope of further discouraging support for the Union.
It also ensures that the Union will not be pressured by the
Respondent’s withdrawal of recognition to achieve im-
mediate results at the bargaining table following the
Board’s resolution of its unfair labor practice charges and
issuance of a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent has afforded the employees a reasonable time to
regroup and bargain through their representative in an

2 Member Schaumber does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) violation.” He
agrees with the U.S. Court of Appeals for the District of Columbia
Circuit that a case-by-case analysis is required to determine if the rem-
edy is appropriate. See Eden Gardens Nursing Home, 339 NLRB 71,
72–73 fns. 9 and 10 (2003). On the facts of this case, Member
Schaumber finds that a bargaining order is warranted.
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 399
effort to reach a collective-bargaining agreement. Such a
result would be particularly unfair here, in view of the
Respondent’s repeated unfair labor practices in violation
of its duty to bargain, including its unilateral change in
the work schedule of Garry Kavanaugh, the Union’s
committeeman and spokesperson in the bargaining unit,
to include weekends, as well as Kavanaugh’s later sus-
pension. Further, the Respondent was also found to have
committed earlier violations of its duty to bargain with
the Union in Mimbres Memorial Hospital, 337 NLRB
998 (2002), in which the Board withheld an affirmative
bargaining order. These unlawful actions, in their total-
ity, occurred over a period of 2 years, for the better part
of which the Respondent refused to recognize the Union
and thereby prevented it from obtaining agreement on a
contract. All these unfair labor practices, particularly
those that personally affected Kavanaugh, were likely to
have a demoralizing impact on employees and increase
employee disaffection from the Union. We find that
these circumstances outweigh the temporary impact the
affirmative bargaining order will have on the rights of
employees who oppose continued union representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the violations in this
case. We also reiterate the judge’s finding, which we
affirm, that the Respondent failed to establish that, when
it withdrew recognition, it had a reasonable uncertainty
as to the Union’s majority status.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Community Health Services,
Inc. d/b/a Mimbres Memorial Hospital and Nursing
Home, Deming, New Mexico, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

Richard A. Smith, Esq., for the General Counsel.
Don T. Carmody, Esq., P.C., of Woodstock, New York, for the
Respondent.
Freddie Sanchez, of Tuscon, Arizona, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Deming, New Mexico, on March 13, 2002, upon the
General Counsel’s second consolidated complaint (complaint)
issued October 16, 2001.1 Upon charges filed by United Steel-
workers of America, District 12, Subdistrict 2, AFL–CIO, CLC
(the Union), the complaint alleges that Community Health Ser-

1 All dates are in 2001 unless otherwise indicated.
vices, Inc. d/b/a Mimbres Memorial Hospital and Nursing
Home (the Respondent) has failed and refused to recognize or
to meet and bargain with the Union and has made unilateral
changes in terms and conditions of employment of its employ-
ees represented by the Union in violation of Section 8(a)(5) and
(1) of the Act.
At the close of the General Counsel’s case, I granted the
General Counsel’s motion to withdraw complaint paragraphs
6(a) through (d) and 7(b). Although the General Counsel did
not withdraw paragraphs 9 and 10, inasmuch as those allega-
tions are underpinned by paragraphs 6 and 7(b), issues regard-
ing independent violations of Section 8(a)(1) and violations of
Section 8(a)(3) no longer exist.
Issues
1. Did Respondent violate Section 8(a)(5) and (1) of the Act
by failing and refusing to respond to oral and written requests
of the Union to meet and bargain since March 28, 2000?
2. Did Respondent violate Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union since
March 28, 2000?
3. Did Respondent violate Section 8(a)(5) and (1) of the Act
by taking the following unilateral actions:

(a) on January 31, modifying the shift schedules of its
respiratory department employees?
(b) on January 31, ceasing its policy of allowing week-
ends off for respiratory department employees?
(c) on April 1, hiring non-bargaining unit employees to
perform bargaining unit work?
(d) on April 23, reducing the work hours of its full-
time employees?
(e) on June 18, implementing an employee fingerprint-
ing policy?

4. Did Respondent violate Section 8(a)(5) and (1) of the Act
by suspending unit employee Garry Kavanaugh (Kavanaugh)
pursuant to its unilateral implementation of an employee fin-
gerprinting policy?2
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Mexico corporation, operates a hospital
and nursing home providing inpatient and outpatient medical
care at its facility in Deming, New Mexico (the Facility),
where, during a representative 12-month period ending Sep-
tember 25, 2000, it derived gross revenues in excess of
$250,000 and purchased and received goods valued in excess of
$50,000 directly from points outside the State of New Mexico.

2 The General Counsel does not seek reinstatement of Kavanaugh as
a remedy of this alleged violation of Sec. 8(a)(5) and (1).
3 General Counsel’s unopposed motion to correct the transcript,
dated May 2, 2002 is granted and received as GC Exh. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
Respondent stipulated and I find Respondent to be an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and the Union to be a labor organization
within the meaning of Section 2(5) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Credible Evidence
Prior to March 13, 1996, Luna County, New Mexico (Luna
County) owned and operated Mimbres Memorial Hospital
Nursing Home (MMH). On July 18, 1995, the Union was certi-
fied by the Public Employees Labor Relations Board of New
Mexico (the New Mexico Board) as the exclusive collective-
bargaining representative in two units essentially described as:
(1) service, maintenance and clerical positions, excluding tech-
nical and all other positions as well as supervisory, managerial,
confidential as those terms are defined under the [New Mexico
Labor Relations] Act and [New Mexico Labor Relations]
Board’s rules and regulations; (2) technical, excluding service,
maintenance clerical, and all others as well as supervisory,
managerial, confidential as those terms are defined under the
[New Mexico Labor Relations] Act and [New Mexico Labor
Relations] Board’s rules and regulations.5
On March 13, 1996, Respondent purchased MMH. Since
March 13, 1996, Respondent has continued to operate MMH in
essentially unchanged form, at the same location, providing the
same healthcare services. Following its purchase of MMH,

4 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence. Administrative Law Judge James L. Rose held a hearing on
May 2 and 3, 2000 (the Rose hearing), involving the same Respondent
and similar issues in Cases 28–CA–15948 and 28–CA–16291. On
August 2, 2000, Judge Rose issued his decision, which is currently
before the Board on exceptions. In the instant hearing, Respondent
adopted certain stipulations made in the Rose hearing. Respondent also
did not contest certain of Judge Rose’s findings, taking the position that
the Board or a circuit court will resolve such issues as appropriateness
of unit. The findings herein reflect findings made by Judge Rose that
are uncontested for purposes of this hearing.
5 In its complaint, the General Counsel describes Respondent’s ap-
propriate units as follows:
Unit A
All service, maintenance and clerical employees employed by the
Respondent, but excluding technical and all other positions as well
as supervisory, managerial, confidential [employees] as those terms
are defined under the Act and the Board’s rules and regulations.
Unit B
All technical employees employed by the Respondent, but ex-
cluding service, maintenance, clerical, and all other [employees] as
well as supervisory, managerial, confidential [employees] as those
terms are defined under the Act and the Board’s rules.

In its answer, Respondent denied the appropriateness of both units
and in its brief refers to the units as “foreign to Board health care law.”
At the hearing, Respondent’s counsel stated that Respondent did not
seek to litigate the appropriateness of the units in the instant proceeding
any more than in the Rose hearing. Neither party briefed the issue of
appropriateness of the units in the Rose hearing. As Respondent ad-
mits, the units designated in the complaint are those certified by the
New Mexico Board. As the units pleaded in the complaint are substan-
tially the same as those historically certified, I conclude they are appro-
priate.
Respondent employed as a majority of its employees individu-
als who were previously employees of Luna County at MMH.
Following its purchase of MMH, Respondent recognized and
bargained with the Union without achieving a final agreement.
The last negotiating session was September 8, 1999. On No-
vember 2, 1999, Respondent withdrew recognition of the Union
because (1) no employee had ever become a member of the
Union,6 (2) negotiations over a 4-year period produced no
agreement, (3) substantial employee turnover had occurred, (4)
the Union had not communicated regularly with employees,
and (5) the employee representative of the Union had dealt with
Respondent in the absence of union officials. Thereafter, Re-
spondent has at all times refused to bargain with the Union.7
After Respondent withdrew recognition, the Union kept in
touch with Kavanaugh, union committeeman at Respondent.
The Union did not otherwise communicate with unit employ-
ees. Upon receipt of Judge Rose’s decision, Freddie Sanchez
(Sanchez), union staff representative responsible for the above
units, by letter to Respondent’s attorney dated August 7, 2000,
“demand[ed] to meet and bargain for a . . . contract.” Begin-
ning with the August 7, 2000 letter through the date of the hear-
ing, Sanchez wrote similarly worded letters to Respondent ap-
proximately biweekly. When Respondent made no reply, the
Union filed the charge in Case 28–CA–16762 on September 25,
2000. At the hearing, counsel for Respondent stated that Re-
spondent did not respond to the Union’s letters on and follow-
ing August 7, 2000, “because we’ve adopted a position which
we had adopted before Administrative Law Judge Rose and
now before Your Honor, and it’s just simply not acting in any
manner inconsistent with that, so that some defacto claim could
be made that we somehow, if anything, other than withdraw a
recognition from the Union back in the Fall of 1999.”
On January 31, Respondent modified the shift schedules of
its respiratory department employees (including unit employ-
ees) without prior notice to the Union and without affording the
Union an opportunity to bargain about the modifications.
Sometime in April, Respondent changed the work schedule
of Kavanaugh to include weekend work without prior notice to
the Union and without affording the Union an opportunity to
bargain about Kavanaugh’s changed schedule.
Sometime in April, Respondent reduced the hours of its res-
piratory department employees (including unit employees)
from 40 hours per week to 32 to 36 hours. Respondent did so
without prior notice to the Union and without affording the
Union an opportunity to bargain about the reductions.
For at least the last 12 years, Respondent has employed on-
call or as-needed employees (PRN employees) in the respira-
tory and other departments to cover vacations, days off, or sick
leave taken by regular employees. Sometime in April, Respon-
dent hired additional PRN employees for the respiratory de-
partment without prior notice to the Union and without afford-
ing the Union an opportunity to bargain about the decision.

6 The Union does not solicit employees as members until a collec-
tive-bargaining agreement is reached covering them.
7 At the hearing, Respondent adopted the same positions regarding
its withdrawal of recognition as it had before Judge Rose and in its
exceptions to the Board.
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 401
On June 18, Respondent implemented an employee finger-
print policy for all employees, including unit employees, with-
out prior notice to the Union and without affording the Union
an opportunity to bargain about the policy or its implementa-
tion.8
On July 2, Respondent suspended Kavanaugh because he re-
fused to comply with Respondent’s fingerprinting policy im-
plemented on June 18.
B. Procedural Rulings
Because the General Counsel withdrew all Section 8(a)(3)
and independent 8(a)(1) allegations, his case in chief concluded
earlier than anticipated. At that time, Respondent’s attorney,
Carmody, stated that Respondent had planned to present two
witnesses in its case: Timothy Schmidt and Carol Schmoyer.
However, Carmody would not present them if he could inter-
cept them in their travel to the hearing site. When Carmody
was unable to intercept the two witnesses, he requested the
hearing be continued to the following day when the witnesses
would be available. In an offer of proof, Carmody said he ex-
pected Schmidt and Schmoyer to testify, essentially, that Re-
spondent withdrew recognition in 1999 because it believed the
Union had lost majority status. In its brief, Respondent asks me
to reconsider my rejection of this offer of proof. Respondent
was afforded an opportunity to argue loss of majority status as
motivation for withdrawal of recognition. As I have fully con-
sidered that argument and supporting evidence, Respondent has
not been prejudiced by my declining to continue the hearing for
additional testimony on that question. Accordingly, I reaffirm
my prior ruling.
At the hearing, pursuant to the Jenks rule, Respondent’s at-
torney, Carmody, requested statements of Sanchez obtained
during investigation of the instant charges, which counsel for
the General Counsel provided. Respondent also requested
statements obtained during investigation of the charges at issue
in the Rose hearing, which had been provided to Carmody fol-
lowing Sanchez’ testimony in that proceeding. As the prior
statements were in the Region’s files in Phoenix, a trial delay
would occur if they were to be obtained. I ruled that the prior
statements did not have to be produced as the only material
contained therein that could relate to the subject matter of San-
chez’ testimony was the parties’ bargaining history, none of
which was in dispute. In its brief, Respondent requests that I
reconsider my ruling, pointing out that Sanchez testified to the
history of negotiations between the parties prior to the Rose
hearing, to his attendance at the Rose hearing, and his motiva-
tion for filing the first of the charges considered herein. Re-
spondent argues that Sanchez’ testimony brought the time pe-
riod covered by the earlier statements into issue, and therefore
Respondent was entitled to review all statements of Sanchez
prior to cross-examination. Except for undisputed historical
background, all of Sanchez’ testimony in the instant case re-
lates to conduct occurring after the Rose hearing. It is clear
from chronological overview alone that the prior statements

8 A stipulation of the parties set the date of implementation as June
18 although a memorandum to Respondent’s supervisors stating that
supervisors were to notify employees of the fingerprinting policy is
dated July 2.
could not contain any information relating to the current allega-
tions, including Sanchez’ attendance at the Rose hearing, and
his motivation for filing (on September 25, 2000), the first of
the charges considered herein. Accordingly, I reaffirm my
prior ruling and deny Respondent’s motion to strike Sanchez’
testimony in the instant hearing.
C. Discussion
1. Refusal to respond to the Union’s requests to bargain and
refusal to recognize and bargain with the Union
The complaint alleges that Respondent failed and refused to
respond to the Union’s oral and written requests to bargain and
has refused to recognize and bargain with the Union since
March 28, 2000. As explained hereafter, I will only consider
refusal-to-bargain conduct alleged to have occurred after the
conclusion of the Rose hearing (May 3, 2000).
There is no evidence of any specific oral request to bargain since
the Rose hearing concluded on May 3, 2000. However, beginning
August 7, 2000, the Union sent Respondent biweekly written re-
quests to meet and bargain. Respondent admits receiving the Un-
ion’s letters and admits that it has refused, and continues to refuse,
to meet and bargain with the Union. Respondent’s failure to re-
spond to the Union’s demand letters on and after August 7, 2000
constitutes a renewed refusal to bargain as well as a continuing
refusal to bargain with the Union. See Beachview Care & Reha-
bilitation Center, 328 NLRB 278 (1999).
With regard to the allegations of complaint paragraph 8(b),
there is no dispute that Respondent has refused and is refusing
to bargain with the Union. Whatever may have been Respon-
dent’s posture or the evidence relating to withdrawal of Union
recognition at the Rose hearing, Respondent now concedes that
it has withdrawn recognition.
As discussed below, I reject Respondent’s defense that it was
not obligated to bargain with the Union because the Union had,
since 1999, ceased to represent a majority of the unit employees.
2. Alleged unilateral changes
It is clear that Respondent’s admitted unilateral modifica-
tions of the following employment matters are material, sub-
stantial, and significant changes to unit wages, hours, and other
terms and conditions of employment.9 Accordingly, I find that
Respondent violated Section 8(a)(5) and (1) of the Act when it
unilaterally made the following changes:

January 31—respiratory department shift schedule
modifications. See Meat Cutters Local Union 189 v.
Jewell Tea Co., 381 U.S. 676, 691 (1965).
April—modification of Mr. Kavanaugh’s work sched-
ule. Ibid.
April—reduction in respiratory department employees’
hours. Eugene Iovine, Inc., 328 NLRB 294 (1999).
June 18—implementation of an employee fingerprint
policy. The policy presumably provides new grounds for
discipline, thus impacting job security. Bath Iron Works

9 NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Borg-Warner Corp., 356
U.S. 342 (1958); NLRB v. Dothan Eagle, 434 F.2d 93 (5th Cir. 1970); in re
Beverly Health and Rehabilitation Service, 335 NLRB 635 (2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
Corp., 302 NLRB 898 (1991). See Brimar Corporation,
334 NLRB [1035] (2001).

With regard to Respondent’s April employment of PRN em-
ployees, it is not clear from the evidence that any change in past
practice occurred. Respondent has hired and used PRN employ-
ees since before the New Mexico Board’s 1995 unit certifica-
tions. There is no evidence that the April hiring of PRN employ-
ees differed in any way from past procedures. A continuation of
a past practice is not a unilateral change in working conditions.
KDEN Broadcasting Co., 225 NLRB 25 (1976), distinguished in
Mackie Automotive Systems, 336 NLRB 347 (2001). Accord-
ingly, I conclude the General Counsel has not met his burden of
proving that Respondent unilaterally hired PRN employees in
violation of Section 8(a)(5) and (1) of the Act.
3. Suspension of Kavanaugh
Since Respondent’s unlawfully implemented fingerprinting
policy was a factor in the suspension of Kavanaugh, his suspen-
sion violates Section 8(a)(5) of the Act. See Consec Security,
328 NLRB 1201 (1999), citing Great Western Produce, 299
NLRB 1004 (1990).10
4. Respondent’s defenses
A. As affirmative defenses, Respondent argues that litiga-
tion of the alleged unfair labor practices is barred by Section
10(b) of the Act, that the alleged unfair labor practices are de-
rivative of the earlier complaint, are based upon facts known to
the General Counsel at the time of the Rose hearing, are an
attempt to litigate compliance issues related to Cases 28–CA–
15948 and 28–CA–16291 (covered in the Rose hearing) and
deny Respondent’s due process. Essentially, Respondent ar-
gues that the General Counsel is precluded from litigating the
instant issues because the General Counsel knew or should
have known of the underlying facts at the time of the Rose
hearing on May 2 and 3, 2000. See Jefferson Chemical, 200
NLRB 992 (1972); Highland Yarn, 310 NLRB 644 (1993).
In his decision, Judge Rose considered whether Respondent
had made unilateral changes in violation of Section 8(a)(5) and
(1) of the Act in the following areas and on the following dates:
(1) absence and sick leave policy in April and October 1999,
(2) overtime policy in April 1999, (3) increased pay rates for
new hires beginning August 1999, (4) employee payment for
training courses in August 1999, (5) creation of a new policy
manual,11 and (6) policy changes pursuant to the new policy
manual.12
As to Respondent’s alleged withdrawal of recognition from
the Union on March 23, 2000, Judge Rose concluded that al-
though certain letters from the Union to Respondent went unan-
swered, there was no evidence Respondent actually withdrew
recognition. Judge Rose sustained Respondent’s objection to
the General Counsel’s motion to amend or clarify the complaint

10 It is immaterial that the General Counsel does not intend to seek
reinstatement of Kavanaugh. Consec Security, above.
11 It is unclear from Judge Rose’s decision when the policy manual
was created, but it appears to have been prior to April 2000.
12 It is unclear from Judge Rose’s decision which specific policies
were instituted or when. Presumably, the changes were made prior to
the hearing dates of May 2 and 3, 2000.
to allege a constructive withdrawal of recognition. Judge Rose
found Respondent violated Section 8(a)(5) only as to unilateral
changes to its absence and sick leave policy, unspecified policy
changes made prior to May 2, 2000, and refusal to furnish in-
formation on March 23, 2000.
For the most part, the complaint herein alleges that Respon-
dent violated the Act by conduct separate and discrete from that
considered by Judge Rose. Thus, the asserted unilateral
changes are all alleged to have occurred in 2001, several
months after Judge Rose’s decision issued. As to all 2001 con-
duct, the General Counsel clearly has not attempted to relitigate
the same acts or conduct addressed in the Rose hearing. See
Beverly Health & Rehabilitation Services, 332 NLRB 347 fn. 1
(2000), where the Board quoted with approval the administra-
tive law judge’s conclusion that “Jefferson Chemical is not
meant to apply . . . [to] litigation spanning several years
[where] the General Counsel pursues the litigation in reason-
able, self-contained segments.” Moreover, allegations pertain-
ing to conduct occurring after a trial are not barred under Jef-
ferson Chemical. See New Surfside Nursing Home, 330 NLRB
1146 (2000). I conclude that Respondent’s affirmative de-
fenses regarding the alleged unilateral changes fail.
As to the allegations of complaint paragraphs 8(a) and (b),
there appears to be some overlap between the allegations con-
sidered by Judge Rose and those in the instant complaint. The
complaint alleges at paragraph 8(a) that “[s]ince on or about
March 28, 2000, and continuing to date, the Respondent has
failed and refused to respond to numerous oral and written
requests of the Union to meet and bargain with the Union as the
exclusive collective-bargaining representative of the [unit em-
ployees]. The complaint further alleges at paragraph 8(b) that
“[s]ince on or about March 28, 2000, the Respondent has failed
and refused to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the [unit em-
ployees].” For the period of March 28, 2000 through the date
of the Rose hearing, the General Counsel either litigated, or
knowingly failed to litigate, similar refusal to bargain allega-
tions. This is apparently not a situation where the General
Counsel exercised his discretion not to include conduct encom-
passed by a pending charge in the Rose complaint. See Fron-
tier Hotel, 324 NLRB 1225 (1997). Rather, it appears to be an
inadvertent attempt by the General Counsel to relitigate the
same conduct in different cases, which the Board will generally
not permit. Detroit Newspapers, 330 NLRB 524 (2000).
Therefore, I have not considered conduct alleged to have oc-
curred before the close of the Rose hearing in finding that Re-
spondent violated Section 8(a)(5) and (1) of the Act. Inasmuch
as I have not considered conduct before May 4, 2000, in reach-
ing my decision, all conduct dealt with herein is within the
relevant 10(b) period and does not overlap any of the Rose
hearing allegations. Accordingly, Respondent has not been
denied due process.
B. Respondent contends it properly withdrew recognition as
it had a good-faith doubt of the Union’s majority status. Re-
spondent’s withdrawal of recognition was effected prior to the
Board’s decision in Levitz, 333 NLRB 717 (2001). As Levitz is
not to be applied retroactively, the “good-faith uncertainty”
standard explicated by the Supreme Court in Allentown Mack
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 403
Sales & Service v. NLRB, 522 U.S. 359 (1998), is controlling in
the analysis of this case. See Horizon House Developmental
Services, 337 NLRB 22 fn. 4 (2001).
Respondent’s stated basis for a good-faith doubt of the Un-
ion’s majority status prior to its withdrawal of recognition are
that: (1) no employee had ever become a member of the Union,
(2) negotiations over a 4-year period had produced no agree-
ment, (3) substantial employee turnover had occurred, (4) the
Union did not communicate with employees, and (5) the em-
ployee representative of the Union rather than union officials
had dealt with Respondent. Respondent’s reasons, neither sin-
gly nor collectively, are sufficient to establish that it had a
good-faith reasonable uncertainty as to the Union’s continuing
majority status when it withdrew recognition or that it now has
a good-faith reasonable uncertainty.
As to Respondent’s first basis, “. . . a showing that less than
a majority of the employees in the union are members of the
union is not the equivalent of showing lack of majority sup-
port.” Bartenders Association of Pocatello, 213 NLRB 651,
652 (1974); Rodgers & McDonald Graphics, 336 NLRB 836
(2001). That Board’s position in this regard is particularly apt
where, as here, the Union does not solicit or encourage union
membership in the absence of an agreement. There is no evi-
dence that any unit employees ever sought to decertify the Un-
ion or otherwise expressed to Respondent their desire not to be
represented by the Union. Respondent’s first basis is without
validity. See Rodger & McDonald Graphics, above.
Respondent’s second basis—the fact that extended negotia-
tions between Respondent and the Union have not produced a
contract—also has no merit. See Spillman Co., 311 NLRB 95,
95 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994); Flex Plastics, Inc.,
262 NLRB 651 (1982), enfd. 726 F.2d 272 (6th Cir. 1984).
Respondent’s third basis—that substantial employee turn-
over has occurred is likewise unpersuasive. The Board applies
a presumption that newly hired employees support the union in
the same proportion as the employees they have replaced, ab-
sent strong evidence to the contrary. NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 779 (1990); Kelly’s Private Car
Service, 289 NLRB 30, 43 (1988). Although the evidence
shows significant employee turnover in the past several years,
there is no credible evidence that the succeeding employees do
not support the Union in the same proportion as the employees
they replaced. While the General Counsel concedes that unit
employees have not joined the Union, Respondent has not es-
tablished a basis for inferring that they do not want to be repre-
sented by the Union. In addition to the Union’s policy of not
encouraging membership in the absence of a contract, employ-
ees may have many reasons for wanting union representation,
but not wanting to be union members. Respondent has not
presented any evidence that employees expressed dissatisfac-
tion with the Union. The Board has made clear that “in the
absence of evidence that employees expressed dissatisfaction
with the Union, the Respondent’s reliance on employee turn-
over fails.” Spillman Co., supra. Accordingly, I find that em-
ployee turnover is not a sufficient basis for uncertainty.
Respondent’s basis four and five are essentially that the Un-
ion’s inactivity supports a good-faith uncertainty. Not only is
Respondent’s argument unfounded in Board law,13 it is disin-
genuous. By refusing to bargain further with the Union and by
withdrawing recognition, Respondent effectively vitiated the
Union’s role as the representative of unit employees. Respon-
dent cannot now assert the Union’s reduced representational
profile as a defense to its refusal to bargain. Moreover, the
Union has consistently asserted its bargaining rights through
NLRB litigation and through renewed written bargaining re-
quests, all of which negates the inference Respondent seeks to
draw. Spillman Co., above.
Applying the Allentown Mack standard, I find that the evi-
dence on which Respondent relied is insufficient to establish
that it had a good-faith reasonable uncertainty as to the Union’s
majority status at the time it refused to bargain further with the
Union and withdrew recognition.
C. Respondent argues that as to the fingerprinting policy,
New Mexico law requires fingerprinting of caregiver employ-
ees under the Caregivers Criminal History Screening Act.14
Respondent may have had no discretion in applying fingerprint-
ing procedures to certain of its employees. It is, however, well
settled Board law that although an employer may not be obli-
gated to bargain over certain ultimate decisions, the Act re-
quires that the employer afford a union the opportunity to dis-
cuss the impact and effects of the decision on bargaining unit
employees. This obligation is not voided by the fact that the
bargaining, or some of it, may have to take place after imple-
mentation. Gannett Co., 333 NLRB 355 fn. 1 (2001). There-
fore, this defense also fails.
CONCLUSIONS OF LAW
1. The following described units are appropriate for collec-
tive-bargaining purposes:

Unit A
All service, maintenance and clerical employees employed by
the Respondent, but excluding technical and all other posi-
tions as well as supervisory, managerial, confidential employ-
ees as those terms are defined under the New Mexico Labor
Relations Act and the New Mexico Labor Relations Board’s
rules and regulations.

Unit B
All technical employees employed by the Respondent, but
excluding service, maintenance, clerical, and all other em-
ployees as well as supervisory, managerial, confidential em-
ployees as those terms are defined under the New Mexico La-
bor Relations Act and the New Mexico Labor Relations
Board’s rules and regulations.

13 See Marion Memorial Hospital, 335 NLRB 1016, 1018 (2001);
Spillman Co., above.
14 As requested by Respondent, I take administrative judicial notice
of 29-17-2 to 29-17-5 NMSA, which provides, essentially, that New
Mexico health care providers shall submit a set of fingerprints of appli-
cants and caregivers to the New Mexico department of health for na-
tionwide criminal history screening pursuant to an applicant’s or care-
giver’s authorization for such nationwide criminal history screening.
The term “caregiver” would, by definition, include some of the units’
classifications, and no caregiver may be employed by a care provider
unless the caregiver first has submitted to a request for a nationwide
criminal history screening prior to beginning employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404

2. At all material times, the Union has been the exclusive
collective-bargaining representative of the units described
above for the purposes of collective bargaining.
3. Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act by the following conduct:

(a) failing and refusing, since August 7, 2001, to re-
spond to written requests of the Union to meet and bargain
regarding the above unit employees,
(b) refusing to recognize and bargain with the Union
regarding the above unit employees since May 4, 2000,
(c) unilaterally implementing changed terms and con-
ditions of employment for employees employed in the
above units during January 2001 through June 2001,
(d) suspending Garry Kavanaugh on July 2, 2001.

4. Respondent has not violated the Act as otherwise alleged
in the complaint.
REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act, I find that it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Since Respondent has refused to bargain with the Union about
certain terms and conditions of employment of represented em-
ployees and has suspended an employee pursuant to its unlaw-
fully implemented fingerprint policy, I shall order Respondent to
rescind its January 31, 2001 respiratory department shift schedule
modifications, its April 2001 modification of Garry Kavanaugh’s
work schedule, its April 2001 reduction in respiratory department
employees’ hours, its June 18 implementation of an employee
fingerprint policy, and its suspension of Garry Kavanaugh pursu-
ant to the unlawfully implemented fingerprint policy. Respon-
dent shall also make whole any employee for any loss of earnings
and other benefits suffered as a result of its unlawful actions
computed as prescribed in Ogle Protection Service, 183 NLRB
682 (1970), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Community Health Systems, Inc. d/b/a
Mimbres Memorial Hospital and Nursing Home, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union concerning the wages, hours, working conditions and
other terms and conditions of employment of employees in the
following units:

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Unit A
All service, maintenance and clerical employees employed by
the Respondent, but excluding technical and all other posi-
tions as well as supervisory, managerial, confidential employ-
ees as those terms are defined under the New Mexico Labor
Relations Act and the New Mexico Labor Relations Board’s
rules and regulations.
Unit B
All technical employees employed by the Respondent, but
excluding service, maintenance, clerical, and all other em-
ployees as well as supervisory, managerial, confidential em-
ployees as those terms are defined under the New Mexico La-
bor Relations Act and the New Mexico Labor Relations
Board’s rules and regulations.

(b) Failing and refusing to respond to bargaining requests of
the Union as the exclusive collective-bargaining representative
of employees in the above units.
(c) Unilaterally implementing changes in the terms and con-
ditions of employment of the above unit employees, including
shift schedule modifications, weekend work schedule modifica-
tions, reduction in employee work hours, and employee finger-
printing policy implementation.
(d) Suspending, or otherwise taking adverse action against
any employee pursuant to any unlawfully implemented change
in terms and conditions of employment of the above unit em-
ployees.
(e) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the above appropriate units
concerning terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement.
(b) Rescind unilateral changes in the terms and conditions of
employment of the above unit employees, including shift
schedule modifications, weekend work schedule modifications,
reduction in employee work hours, and employee fingerprinting
policy implementation.
(c) Rescind the July 2, 2001 suspension of Garry Kavanaugh
given pursuant to the unlawfully implemented fingerprint pol-
icy.
(d) Make employees whole for any loss of earnings and other
benefits suffered as a result of the unlawful unilateral changes
in the manner set forth in the remedy section of the decision.
(e) Make Garry Kavanaugh whole for any loss of earnings
and other benefits suffered as a result of his unlawful suspen-
sion.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 405
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa-
cility in Deming, New Mexico, copies of the attached notice
marked “Appendix.”16 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 are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 current employees and former employees employed by the
Respondent at any time since May 4, 2000.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT do anything that interferes with these rights.
WE WILL NOT fail or refuse to recognize and bargain with the
United Steelworkers of America, District 12, Subdistrict 2,
AFL–CIO, CLC concerning the wages, hours, working condi-
tions and other terms and conditions of employment of employ-
ees in the following units:
Unit A
All service, maintenance and clerical employees employed by
the Respondent, but excluding technical and all other posi-
tions as well as supervisory, managerial, confidential employ-
ees as those terms are defined under the New Mexico Labor

16 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.”
Relations Act and the New Mexico Labor Relations Board’s
rules and regulations.
Unit B
All technical employees employed by the Respondent, but
excluding service, maintenance, clerical, and all other em-
ployees as well as supervisory, managerial, confidential em-
ployees as those terms are defined under the New Mexico La-
bor Relations Act and the New Mexico Labor Relations
Board’s rules and regulations.

WE WILL NOT fail or refuse to respond to bargaining requests
of the United Steelworkers of America, District 12, Subdistrict
2, AFL–CIO, CLC, as the exclusive collective-bargaining rep-
resentative of employees in the above units.
WE WILL NOT unilaterally change terms and conditions of
employment of the above unit employees, including changing
shift schedules, changing weekend work schedules, reducing
employee work hours, and implementing an employee finger-
printing policy.
WE WILL NOT suspend, or otherwise take adverse action
against any employee, pursuant to any unlawfully implemented
change in terms and conditions of employment of the above
unit employees.
WE WILL NOT in any like or related manner refuse to recog-
nize and bargain with the United Steelworkers of America,
District 12, Subdistrict 2, AFL–CIO, CLC concerning wages,
hours, working conditions and other terms and conditions of
employment of employees in the above units.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL notify the United Steelworkers of America, District
12, Subdistrict 2, AFL–CIO, CLC, in writing, that we recognize
that Union as the exclusive collective-bargaining representative
of our employees in the above units under Section 9(a) of the
Act and will bargain with that Union concerning terms and
conditions of employment for those employees.
WE WILL, on request, bargain with the United Steelworkers of
America, District 12, Subdistrict 2, AFL–CIO, CLC as the ex-
clusive representative of the employees in the above appropri-
ate units concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding in a
signed agreement.
WE WILL rescind unilateral changes in the terms and condi-
tions of employment of the above unit employees, including
shift schedule modifications, weekend work schedule modifica-
tions, reduction in employee work hours, and employee finger-
printing policy implementation.
WE WILL rescind the July 2, 2001 suspension of Garry Kava-
naugh.
WE WILL make employees whole, with interest, for any loss
of earnings and other benefits suffered as a result of the unlaw-
ful unilateral changes we made.
WE WILL make Garry Kavanaugh whole, with interest, for
any loss of earnings and other benefits suffered as a result of
his unlawful suspension.

COMMUNITY HEALTH SERVICES, INC., D/B/A MIMBRES
MEMORIAL HOSPITAL AND NURSING HOME