Mimbres Memorial Hospital

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 345 (N.L.R.B. 2004)

MIMBRES MEMORIAL HOSPITAL & NURSING HOME
342 NLRB No. 28
345
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. Case 28–CA–
17777
June 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On September 24, 2002, Administrative Law Judge
Thomas M. Patton issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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, and conclusions1 and
to adopt the recommended Order.
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, except that the attached notice is substituted for
that of the administrative law judge.

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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union

1 In affirming the judge’s finding that the Respondent unlawfully re-
fused to provide the Union with the names, addresses, and seniority
dates of unit employees, we note that this information was presump-
tively relevant.
The judge described Maple View Manor, 320 NLRB 1149 (1996), as
holding that lists of current employees, including their names, dates of
hire, last known addresses, telephone numbers, social security numbers,
rates of pay, and job classifications are presumptively relevant. As the
Board stated in that case, social security numbers are not presumptively
relevant. Id. at 1151 fn. 2.
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to provide United Steelworkers
Of America, District 12, Subdistrict 2, AFL–CIO, CLC,
on request, information necessary and relevant to the
Union’s duty as the employees’ bargaining representa-
tive.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide the Union with the information re-
quested by its letters dated October 16 and November 7,
2001, and January 31, 2002.
COMMUNITY HEALTH SYSTEMS, INC., D/B/A MIMBRES
MEMORIAL HOSPITAL AND NURSING HOME

Richard A. Smith, Esq., for the General Counsel.
Don T. Carmody, Esq., P.C, of Woodstock, New York, for the
Respondent.
Freddie Sanchez, Staff Representative, of Tucson Arizona, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. The com-
plaint alleges violations of the National Labor Relations Act
(the Act) by Community Health Systems, Inc., d/b/a Mimbres
Memorial Hospital and Nursing Home (the Respondent). The
complaint issued on April 17, 2002, based on a charge filed by
the United Steelworkers of America, District 12, Subdistrict 2,
AFL–CIO, CLC (the Union) and served on February 28, 2002.1
The Respondent filed a timely answer to the complaint denying
any violation of the Act and raising affirmative defenses. The
case was assigned to me for hearing. The hearing was sched-
uled for July 9, 2002, and was thereafter ordered postponed
indefinitely to permit the parties to submit the case on a stipu-
lated record.
Pursuant to Section 102.35(a)(9) of the Rules and Regula-
tions of the Board the parties submitted a proposed stipulation
of facts (the stipulation) signed by all parties on July 15, 2002,
and filed with the Division of Judges the following day. I ap-
proved the proposed stipulation by order of July 17, 2002. On
the entire record and after considering the briefs filed by the
Respondent and the General Counsel, I make the following

1 The charge alleges that the respondent refused to supply informa-
tion to the Union since on or about October 16, 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times the Respondent, a New Mexico corpo-
ration, with an office and place of business in Deming, New
Mexico, has been engaged in the operation of a hospital and
nursing home providing inpatient and outpatient medical care.
The stipulation establishes that the Respondent meets the
Board’s standards for asserting jurisdiction. The parties stipu-
late, the record establishes, and I find that the Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and a health care institution within
the meaning of Section 2(14) of the Act. The parties stipulate,
the record establishes, and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts and Positions of the Parties2
On or about March 13, 1996, the Respondent assumed the
operation of Mimbres Memorial Hospital and Nursing Home
(the Hospital), in Deming, New Mexico, previously operated by
the Luna County, New Mexico. Since it assumed the operation
of the Hospital the Respondent has continued to operate the
Hospital in basically unchanged form, at the same location,
providing the same healthcare services.
On or about July 18, 1995, the Union was certified by the
Public Employees Labor Relations Board of the State of New
Mexico as the exclusive collective-bargaining representative of
two collective-bargaining units The units are referred to as unit
A and unit B and collectively as the units.
It is alleged that the following employees of the Respondent
at the Hospital, unit A, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9(b) of the Act:

All service, maintenance and clerical employees employed by
the Respondent, but excluding technical and all other posi-
tions as well as supervisory, managerial, and confidential em-
ployees as those terms are defined under the Act and Board’s
rules and regulations.

The complaint alleges that following employees of the Re-
spondent at the Hospital, unit B, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:

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

At the time the Respondent assumed the operation of the
Hospital the Respondent employed as a majority of its employ-
ees in the units individuals who were previously employees of
Luna County at the Hospital. The parties stipulate, the record
establishes, and I find that when the Respondent assumed the

2 By agreement during a conference call, the stipulation also incor-
porates a statement of the position of the parties on the issues.
operations of the Hospital the Respondent has continued to be
the employing entity and is a successor to Luna County.
There have been two prior cases where the Respondent’s
duty to bargain with the Union regarding the units has been
litigated. The first was Mimbres Memorial Hospital, 337 NLRB
998 (2002) (Mimbres I). Administrative Law Judge James L.
Rose issued his decision on August 2, 2000, and the Board’s
decision and order issued August 1, 2002, prior to the filing of
briefs in the present case.
In Mimbres I, the Board found the units to be appropriate
and that the union was the collective-bargaining representative
of the employees. The Board order required, in part, that the
Respondent cease and desist from failing to furnish on request
information necessary and relevant to the Union’s duty as the
employees’ bargaining representative. The Respondent states,
in substance, that it will not comply with the Board’s order in
Mimbres I unless and until the Board’s order is enforced in
court.3
The second case was heard by Administrative Law Judge
Lana H. Parke at a hearing held on March 13, 2002. Judge
Parke issued a decision in the second case, JD(SF)–38–02, on
May 13, 2002 ( Mimbres II). Mimbres II is pending before the
Board on exceptions. The complaint in Mimbres II alleges that
Respondent violated Section 8(a)(1) and (5) of the Act by re-
fusing to recognize and bargain with the Union since March 28,
2000.
The stipulation incorporates the charge, complaint, and an-
swer in the present case, as well as the transcript and exhibits in
Mimbres II and Judge Rose’s decision in Mimbres I. I take
official notice of JD(SF)–38–02.4
The answer to the complaint denies that either of the units is
appropriate. The parties stipulate, however, that Respondent
conceded in Mimbres I and Mimbres II that unit “B” was ap-
propriate, but denied that unit “A” was appropriate. The stipula-
tion states that Respondent continues to contend that unit “A” is
not appropriate. The Respondent seeks to preserve its defenses
that the Union does not represent a majority of employees in an
appropriate unit.
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act when it refused to furnish information
to the Union as the certified collective-bargaining representa-
tive of the units. Specifically, the complaint alleges that on
October 16 and November 7, 2001, and January 31, 2002, the
Union submitted written requests to the Respondent that it pro-
vide the Union with the names, addresses, and seniority dates

3 Respondent’s attorney states on brief mailed September 5, 2002,
that Respondent had petitioned the Court of Appeals for the District of
Columbia to review the Board’s decision in Mimbres I. On September
16, 2002, the office of the clerk of that court was unable to confirm in
response to an administrative inquiry that such a request for review had
been filed.
4 Respondent’s attorney states on brief mailed September 5, 2002,
that Respondent had petitioned the Court of Appeals for the District of
Columbia to review the Board’s decision in Mimbres I. On September
16, 2002, the office of the clerk of that court was unable to confirm in
response to an administrative inquiry that such a request for review had
been filed.
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 347
of all employees in the units and that the Respondent has re-
fused to provide the requested information.
The Respondent admits that the Union requested the infor-
mation as alleged in the complaint and that it has refused to
supply the information.
The answer to the complaint alleges that it had no duty to
bargain with the Union because the Union did not have major-
ity status at the time of the alleged unfair labor practices. The
stipulation reflects that Respondent’s position relative to the
Union’s loss of majority status is summarized in Judge Parke’s
decision in Mimbres II as follows:

Respondent’s stated bases 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 Un-
ion, (2) negotiations over a 4-year period had produced no
agreement, (3) substantial employee turnover had occurred,
(4) the Union did not communicate with employees, and (5)
the employee representative of the Union rather than union
officials had dealt with Respondent.

The General Counsel asserts that none of the criteria that the
Respondent relied on in withdrawing recognition from the Un-
ion are valid under Board law.
The Respondent’s answer to the complaint raises other af-
firmative defenses, which are discussed in the next section.
B. Analysis
Based on Mimbres I, I conclude that the units are appropriate
for collective-bargaining purposes and that at all times material
the Union has been, and is now the exclusive representative of
the employees in the units.
An employer is obligated, on request, to furnish a union with
requested information that is potentially relevant and necessary
for its use in carrying out its responsibilities as the employees’
collective-bargaining representative. NLRB. v. Acme Industrial
Co., 385 U.S. 432 (1967). The General Counsel contends that
by failing and refusing to furnish the Union with the names,
addresses, and seniority dates of bargaining unit employees the
Respondent violated Section 8(a)(1) and (5) of the Act. In sup-
port of this contention the General Counsel points to the
Board’s decision in Maple View Manor, 320 NLRB 1149
(1996), where the Board held that lists of current employees,
including their names, dates of hire, last known addresses, tele-
phone numbers, social security numbers, rates of pay, and job
classifications are presumptively relevant and must be fur-
nished to the exclusive collective-bargaining representative on
request.
Respondent urges as affirmative defenses (1) that litigation
of the three refusals to provide information are barred by the 6-
month limitations period in Section 10(b) of the Act; (2) that
the alleged refusals to furnish information are merely derivative
of Mimbres I and II; (3) that the complaint is an attempt to liti-
gate compliance issues related to Mimbres I and II; (4) that the
complaint is based on facts known to the General Counsel at
the time of the hearing in Mimbres II; and (5) that the com-
plaint denies Respondent due process.
The Respondent contends that the complaint should be dis-
missed because it is based on facts that the General Counsel
knew at the time of the hearing in Mimbres II. Respondent
argues that the evidence satisfies the standards established in
the Board’s opinion in Highland Yarn, 310 NLRB 644 (1993),
based on Jefferson Chemical, 200 NLRB 992 (1972); and Pey-
ton Packing Co., 129 NLRB 1358 (1961).5
In Highland Yarn the Board stated:

[T]he General Counsel may not litigate an unfair labor prac-
tice allegation predicated on events which the General Coun-
sel knew or should have known about when issuing an earlier
complaint or at the time of the trial in that earlier complaint, if
that allegation is of the same general nature as, or is related to,
an allegation in the earlier complaint.

. . . .

Under Jefferson Chemical and Peyton Packing princi-
ples, the General Counsel may litigate complaint allega-
tions in a subsequent proceeding if he was unaware of the
events that form the basis for the allegations at the time of
the earlier hearing and the events were not commonly
known or readily discoverable after investigation, or the
events were independent acts. However, once a respondent
has made a prima facie showing under Jefferson Chemical,
we believe that the burden shifts to the General Counsel to
rebut that showing. More particularly, if a respondent
shows that the allegations of a “new” complaint pertain to
events that occurred prior to the hearing in an earlier case
and that these new allegations are closely related to the al-
legations of the earlier case, the burden shifts to the Gen-
eral Counsel to show that he did not know, and could not
reasonably have discovered, the earlier events at the time
of the hearing in the earlier case or that the allegations of
the new complaint are not closely related to the allegations
of the earlier case.

310 NLRB at 644–645; citation omitted.
The requirements of a Highland Yarn defense are clearly sat-
isfied in the present case. The refusals to provide information
occurred prior to the hearing in Mimbres II and the alleged
refusals to provide information are closely related to the allega-
tions of Mimbres II. Thus, the information at issue was sought
at the same time that the Union was demanding that the Re-
spondent meet and bargain regarding those employees. Sanchez
sent written bargaining demands to Respondent approximately
every other week from August 2000 through the time of the
Mimbres II hearing. It was during the same period that the re-
quests for information were made. The alleged 8(a)(1) and (5)
violations in Mimbres II and those in the present case were
integral parts of the Respondent’s consistent refusal to bargain,
beginning with the events described in Mimbres I. The General
Counsel does not deny knowledge of the facts relating to the
refusals to provide information at any relevant time. It appears
that the General Counsel knew or should have known about the

5 The affirmative defenses are not addressed in the General Coun-
sel’s brief. Similar defenses were raised in Mimbres II. There the judge
concluded that the General Counsel had attempted to relitigate certain
conduct that had been at issue in Mimbres I and declined to consider
that evidence based on Jefferson Chemical considerations, but other-
wise found that the affirmative defenses had no merit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
refusals to provide the information well in advance of the Mim-
bres II hearing. Freddie Sanchez was the General Counsel’s
principal witness in Mimbres II as well as the present case.
Although not acknowledged by Respondent’s attorney,
Highland Yarn has been largely overruled and Jefferson
Chemical and Peyton Packing have been narrowly limited to
fact situations unlike the present case. See Service Employees
Local 87 (Cresleigh Management). 324 NLRB 774, 775 fn. 3
(1997); Frontier Hotel & Casino, 324 NLRB 1225 (1997);
Caterpillar. Inc., 332 NLRB 1116 (2000). Citing Cresleigh,
the Board held:

[E]xcept in the specific circumstances presented in Peyton
Packing and Jefferson Chemical, where the General Counsel
has attempted to “twice litigate the same act of conduct as a
violation of different sections of the Act 9 or to relitigate the
same charge in different cases,” the Board has recognized that
such a blanket rule in favor of consolidation would improp-
erly interfere with the General Counsel’s discretion and, in
some cases, could unduly delay the disposition of pending
cases (citations omitted).

Frontier Hotel & Casino, 324 NLRB at 1226.
The discretion of the General Counsel recognized in
Cresleigh to determine which cases to consolidate will be up-
held absent a showing of arbitrary abuse of discretion. Even
where the General Counsel fails to consolidate cases that the
Board feels should have been consolidated, the Board will not
dismiss the complaint in the absence of a showing of prejudice
to the respondent. New Surfside Nursing Home, 330 NLRB
1146, 1151 (2000). No such showing of prejudice has been
made in the present case. Accordingly, I find that the Respon-
dent has not proved a defense under Peyton Packing and Jeffer-
son Chemical.
The Respondent’s related claim of denial of due process by
the separate litigation of the present case has no merit. The
decision to separately litigate the information requests is within
the discretion of the General Counsel. The Board in Cresleigh
Management, 324 NLRB at 776, stated:

We share our colleague’s concern for efficient casehandling,
conservation of the Board’s resources, and avoiding harass-
ment of or prejudice to respondents, and we have no doubt
that the General Counsel does, too. We also expect that, in the
great majority of cases, the General Counsel’s desire to
achieve those ends would lead him to consolidate outstanding
issues for trial, rule or no rule. Unlike the dissent, however,
we are unwilling to assume that consolidation will serve those
ends in every case, and we have confidence in the General
Counsel’s ability to discern when it will do so and when it
will not.

The Respondent’s other affirmative defenses are also without
merit. Respondent has provided no authority and no convincing
rationale for denying issuance of an order to remedy the refus-
als to provide information prior to the conclusion of the litiga-
tion of Mimbres I and Mimbres II.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. 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, and confidential em-
ployees as those terms are defined under the Act and 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, and confidential
employees as those terms are defined under the Act and
Board’s rules and regulations.

4. The Union, since March 13, 1996, has been and is, the ex-
clusive representative of the employees in unit A and unit B for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By failing and refusing to provide the Union with relevant
information requested by the Union on October 16 and Novem-
ber 7, 2001, and January 31, 2002, specifically the names, ad-
dresses, and seniority dates of all employees in unit A and unit
B, the Respondent has violated Section 8(a)(1) and (5) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I recommend that it be ordered to cease and desist there-
from and to take the affirmative action described below to ef-
fectuate the policies of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended6
ORDER
The Respondent, 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
(a) Failing to furnish on request information necessary and
relevant to the Union’s duty as the employees’ bargaining rep-
resentative.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
MIMBRES MEMORIAL HOSPITAL & NURSING HOME 349
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish to the Union in a timely manner the information
requested by the Union on October 16 and November 7, 2001,
and January 31, 2002.
(b) Within 14 days after service by the Region, post at its
Deming, New Mexico facility copies of the attached notice
marked “Appendix.”7 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

7 If this Order is enforced by a judgement 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.”
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 16, 2001.
(c) 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.