                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         AUG 23 2004
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


NATIONAL LABOR RELATIONS
BOARD,

          Petitioner,
                                                      No. 02-9569
v.
                                              (NLRB Case Nos. 28-CA-15948,
                                                     28-CA-16291)
CHS COMMUNITY HEALTH
SYSTEMS, INC., doing business as
Mimbres Memorial Hospital and
Nursing Home,

          Respondent.




                            ORDER AND JUDGMENT *


Before EBEL, ANDERSON, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      United Steelworkers of America (“the Union”) filed unfair labor practice

charges against CHS Community Health Systems, Inc. (“CHS”). The complaint

alleged that CHS violated the National Labor Relations Act (“NLRA”), 29 U.S.C.

§ 158(a)(5) and (a)(1), by unilaterally changing terms and conditions of

employment, including, in relevant part, its absence and sick leave policy. The

Union also alleged that CHS instituted the policy changes, issued a new policy

manual which it refused to furnish to the Union despite the Union’s request, and

improperly withdrew recognition of the Union as the bargaining representative of

its employees.

      During trial before an administrative law judge (“ALJ”), CHS sought to

submit “Employee Status Reports” (“ESRs”) containing information about

employee turnover. CHS claims that it could not get the ESRs into evidence in a

timely fashion because the head of its human resources department quit her job.

CHS requested an extension of time to submit the ESRs after trial, which the ALJ

denied because CHS offered “[n]o persuasive reason . . . why . . . these

documents have not been produced” and the ESRs “...add[] nothing of substance

to alter [his] ruling.” CHS argues the employee turnover evidence would have

been probative of whether the Union lost its majority status.




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      The ALJ concluded, in relevant part, that the CHS unilateral changes to its

absence and sick leave policy were changes to the “terms and conditions of

employment” in violation of 29 U.S.C. § 158(a)(5). The ALJ also concluded that

the CHS refusal to provide the Union with a copy of the new policy manual

violated § 158(a)(5). The ALJ found that the Union in fact represented a majority

of CHS employees during the relevant time period, and that CHS did not

withdraw recognition from the Union. The ALJ reasoned that the Union’s failure

to negotiate a collective bargaining agreement and to thereby accept CHS

employees into membership, CHS employees’ scarce attendance at a Union

meeting in the fall of 1999, and the alleged turnover of employees proved neither

that a majority of CHS employees had renounced the Union as their bargaining

representative nor that CHS had a reasonable good-faith doubt 1 about the Union’s

majority status.

      A three-member National Labor Relations Board (“NLRB”) panel affirmed

the ALJ’s conclusion that the absence and sick leave policy changes violated §

158(a)(5). The NLRB adopted the portion of the ALJ’s findings of fact relevant


      1
        The NLRB has recently ruled that an employer must show that the Union
in fact lost its majority status in order to be relieved of its statutory obligation to
bargain with the Union. See Levitz Furniture Co., 333 NLRB 717 (2001). At the
time this case was tried before the ALJ, however, an employer could refuse to
bargain with the union if it had a reasonable good-faith doubt about the Union’s
majority status. Id. As a result, this court has reviewed the record and considered
this case under the more lenient, reasonable good-faith doubt standard.

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to this appeal. The NLRB ordered CHS to cease and desist from refusing to

bargain with the Union and from making unilateral changes to the terms and

conditions of employment. It further ordered CHS to rescind the unilateral

changes to the absence and sick leave policy at the Union’s request and to provide

the Union with a copy of the new policy manual.

      CHS appeals. This court has jurisdiction over this appeal pursuant to 29

U.S.C. § 160(f). We AFFIRM the NLRB’s order.

II. BACKGROUND

      In 1995, the employees of Mimbres Memorial Hospital voted for

representation by the Union. The Union was certified as the exclusive collective-

bargaining representative of the employees and the employees selected a Union

representative. The representative attended negotiation sessions, met with

employees individually or in small groups, fielded complaints, and helped

employees with grievances. In 1996, CHS purchased the hospital and continued

to negotiate with the Union.

      In April 1999, CHS issued a new absence and sick leave policy without

consulting with the Union. The Union objected to the change in writing. CHS

nevertheless implemented the policy.

      After the new absence and sick leave policy was issued, the Union asked

CHS to meet and finalize the collective-bargaining agreement. By September


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1999, despite 15 to 20 bargaining sessions over four years, the Union had failed

to negotiate a collective-bargaining agreement with CHS. Because a collective-

bargaining agreement is a prerequisite to Union membership, CHS’ employees

never became Union members.

       In August 1999, two employees circulated petitions to decertify the Union

but acquired only six signatures of the approximately one-hundred and ten

employees. CHS’ Director of Human Resources was aware of the unsuccessful

petition for decertification. In November 1999, CHS canceled two scheduled

negotiation sessions with the Union. The Union nevertheless continued to send

written requests to bargain.

       In January 2000, the hospital created a revised manual reflecting the policy

changes. In March 2000, the Union sent CHS a letter requesting a copy of the

new manual and demanding to bargain over any policy changes reflected in that

manual. The hospital neither responded to this letter nor provided the Union with

a copy of the new policy manual. CHS first stated its alleged doubt regarding the

Union’s continued majority status in response to this litigation, more than one

year after it unilaterally changed its policy.

III.   DISCUSSION

       Whether an employer has established a reasonable good-faith doubt as to

the Union’s majority status is a question of fact. See Allentown Mack Sales and


                                          -5-
Serv., Inc. v. NLRB, 522 U.S. 359, 367 (1998). The NLRB’s findings of fact must

be upheld if supported by substantial evidence on the record as a whole. See 29

U.S.C. § 160(e); Webco Indus., Inc. v. NLRB, 217 F.3d 1306, 1311 (10th Cir.

2000). Upon review of the record, this court is convinced that the findings below

must be upheld. We AFFIRM the NLRB’s order for substantially the reasons

stated in the NLRB’s Decision and Order.

IV.   CONCLUSION

      For the foregoing reasons, this court AFFIRMS the NLRB’s order.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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