* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 23 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD, Petitioner,

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

28-CA-16291)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and MURPHY , Circuit Judges.-2-

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 Relati ons Act (“NLRA”), 29 U.S.C. § 158(a)(5) and (a)(1), by unilaterally changing te rms and conditions of employment, including, in relevant part, its absenc e and sick leave policy. The Union also alleged that CHS instituted the policy c hanges, issued a new policy manual which it refused to furnish to the Union des pite 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 (“A LJ”), CHS sought to submit “Employee Status Reports” (“ESRs”) containin g information about employee turnover. CHS claims that it could not ge t the ESRs into evidence in a timely fashion because the head of its human resour ces department quit her job. CHS requested an extension of time to submit the ES Rs 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 tu rnover evidence would have been probative of whether the Union lost its majori ty status.1 The NLRB has recently ruled that an employer must s how that the Union

in factlost its majority status in order to be relieved o f 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, a n 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 a nd considered this case under the more lenient, reasonable good-f aith doubt standard.
-3- The ALJ concluded, in relevant part, that the CHS u nilateral 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 Unionin fact represented a majority of CHS employees during the relevant time period, a nd that CHS did not withdraw recognition from the Union. The ALJ reaso ned 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 turnov er 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-f aith 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 leav e policy changes violated § 158(a)(5). The NLRB adopted the portion of the ALJ ’s findings of fact relevant-4-

to this appeal. The NLRB ordered CHS to cease and desist from refusing to bargain with the Union and from making unilateral c hanges to the terms and conditions of employment. It further ordered CHS t o 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 certifi ed as the exclusive collectivebargaining representative of the employees and the employees selected a Union representative. The representative attended negoti ation 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 le ave 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 iss ued, the Union asked CHS to meet and finalize the collective-bargaining agreement. By September-5-

1999, despite 15 to 20 bargaining sessions over fou r years, the Union had failed to negotiate a collective-bargaining agreement with CHS. Because a collectivebargaining agreement is a prerequisite to Union mem bership, CHS’ employees never became Union members. In August 1999, two employees circulated petitions to decertify the Union but acquired only six signatures of the approximate ly one-hundred and ten employees. CHS’ Director of Human Resources was aw are of the unsuccessful petition for decertification. In November 1999, CH S canceled two scheduled negotiation sessions with the Union. The Union nev ertheless continued to send written requests to bargain. In January 2000, the hospital created a revised man ual reflecting the policy changes. In March 2000, the Union sent CHS a lette r requesting a copy of the new manual and demanding to bargain over any policychanges 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 go od-faith doubt as to the Union’s majority status is a question of fact. See Allentown Mack Sales and-6-

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 co nvinced 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