|
|
http://laws.findlaw.com/10th/049605.html |
FILED
United States Court of Appeals
Tenth Circuit
April 16, 2007
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 04-9605 & 05-9523
COMMUNITY
HEALTH
SERVICES,
INC.,
d/b/a/
MINBRES
MEMORIAL
HOSPITAL
AND
NURSING
HOME,
Respondent.
APPLICATION FOR ENFORCEMENT AND PETITION FOR REVIEW OF
A DECISION OF THE NATIONAL LABOR RELATIONS BOARD
(NLRB No. 28-CA-1777)
Richard A. Cohen, Washington, D.C., for the Petitioner.
Don T. Carmody, Brentwood, Tennessee, for the Respondent.
Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Before us are consolidated applications brought by the National Labor
Relations Board to enforce twin orders against CHS Community Health Systems,
Inc. CHS argues that neither order should be enforced, because both stem from
issues already litigated in a prior Board proceeding. Alternatively, CHS contends
that the Board's affirmative bargaining order is improper and unwarranted. We
reject both claims and AFFIRM.
I. FACTS
In the summer of 1995, the employees of Mimbres Memorial Hospital and
Nursing Home in Deming, New Mexico, voted to organize with the United
Steelworkers of America. In July, the Public Employees Relations Board of New
Mexico certified the Steelworkers as the exclusive collective-bargaining
representative of two distinct labor units within the hospital: Unit A, comprising
service, maintenance, and clerical staff, and Unit B, composed of technical and
supervising employees.
Not quite a year later, on March 13, 1996, CHS Health Systems, Inc.
purchased Mimbres Memorial from Luna County, New Mexico. At the time of
purchase, the county and the union had not concluded a collective-bargaining
agreement for either labor unit in the hospital. CHS promptly recognized the
union and launched its own round of negotiations, which stretched on for four
years and a dozen meetings without result.
Meanwhile, CHS proceeded to issue new employment policies without
union input or approval. In April 1999, the company handed down a revised
absence and sick-leave policy; another iteration for nurses followed later that
October. The union protested these unilateral changes in writing, but was
ignored. In September, the union requested that CHS meet to continue
negotiations on a collective-bargaining agreement. The parties convened on
September 8, 1999, but once more failed to reach consensus. CHS canceled the
next scheduled bargaining session on November 2 and despite the union's
repeated requests, the parties never met again. Undeterred, the company
promulgated a revised policy manual in the spring of 2000, written without union
input. When union representatives requested a copy, company officials said "no."
As a result of the company's actions, the union filed a series of unfair-
labor-practice charges against CHS with the National Labor Relations Board.
Hearings took place on May 2 and 3, 2000. Three months later an administrative
law judge found that CHS had violated 8(a)(1) and (5) of the National Labor
Relations Act, 29 U.S.C. 158(a)(1), (5), by unilaterally altering the terms and
conditions of employment without affording the union prior notice or opportunity
to bargain. CHS argued that because the union had adhered to its longstanding
policy of refusing to admit new hospital employees into membership until a
collective-bargaining agreement had been reached, and because the parties had
been without an agreement for nearly four years, the Steelworkers' "majority
status" was now in doubt. The ALJ rejected that argument as without factual
foundation. He ordered the company to rescind all unilateral changes and
generally cease and desist from its illegal practices. Importantly for our case, the
ALJ found that CHS had not withdrawn recognition of the union by March 2000
and blocked the General Counsel's (belated) attempt to argue that the company
had constructively withdrawn recognition. Instead, the ALJ found that while CHS
"did in fact fail in its duty to bargain in certain respects, the record is devoid of
evidence that [the company] withdrew recognition." Cmty. Health Sys., Inc.,
d/b/a Mimbres Mem'l Hosp. & Nursing Home, 337 NLRB 998, 1005 (2002)
(Mimbres I). A three-member panel of the National Labor Relations Board
(NLRB) affirmed, as did this Court. N.L.R.B. v. CHS Cmty. Health Sys., Inc., 108
Fed. App'x 577 (10th Cir. 2004).
The company, however, did not reopen negotiations with the union. Three
days after the ALJ issued its decision, a hospital union representative wrote CHS
to request another round of bargaining. CHS did not reply. The union sent letters
approximately every two weeks thereafter, through March 13, 2002, to no avail.
While the union continued to request an opportunity to negotiate, the company
continued unilaterally to alter its employment policies. In January of 2001 CHS
modified the shift schedules of its respiratory department workers without prior
notice to the union. In April 2001, the company changed the work schedule of
union steward Gary Kavanaugh, without prior notice. Also in April, the company
reduced the hours of full-time respiratory department employees and hired
additional part-time employees to make up the difference, without prior notice to
the union. Finally, in June of the same year, the company instituted an employee
fingerprint policy. When union steward Kavanaugh refused to comply in protest,
he was suspended. Kavanaugh reported these acts and the company's continued
refusal to negotiate, leading the union to file new unfair-labor-practice charges
before the Board.
In Cmty. Health Sys., Inc., d/b/a Mimbres Mem'l Hosp. & Nursing Home,
342 NLRB 398 (2004) (Mimbres II), the Board found that the company's refusal
to recognize and bargain with the union following the conclusion of the hearing in
Mimbres I, its failure to bargain after the final decision in Mimbres I, its
unilateral changes in employment policies, and its suspension of Gary Kavanaugh
all constituted violations of 8(a)(1) and (5) of the National Labor Relations Act.
The Board rejected the company's claim that these charges should have been
litigated in Mimbres I, noting that the events underlying them occurred after the
Mimbres I hearing. This time, the Board affirmatively ordered CHS to bargain
with the union, as well as to rescind its unilateral changes in hospital employment
policy.
Then there is Mimbres III. On October 16 and November 7, 2001, and
again on January 31, 2002-the latter date after the hearing for Mimbres II had
already been scheduled-the union sent identical letters to CHS requesting the
names, addresses, and seniority dates for all current employees in Units A and B.
The company declined to reply. In response to the company's silence, the
General Counsel filed a separate complaint before the NLRB on February 28,
2002. The Board rejected the company's contention that the General Counsel's
failure to consolidate the complaints in Mimbres II and III amounted to
prosecutorial abuse, found another violation of 8(a)(1) and (5), and ordered the
company to provide the information sought by the union. Cmty. Health Sys., Inc.,
d/b/a Mimbres Mem'l Hosp. & Nursing Home, 342 NLRB 345, 348-49 (2004)
(Mimbres III).
The Board petitioned this Court to enforce the order issued in Mimbres III;
CHS cross-appealed seeking reversal of the order. The Board initially petitioned
the District of Columbia Circuit to enforce the order from Mimbres II, but that
circuit transferred the petition to this Court. We consolidate the two petitions
here and decide them together.
II. DISCUSSION
Two issues require our attention. First, we must decide whether the
doctrine announced by the Board in Jefferson Chemical Corp., 200 NLRB 992
(1972), barred it from considering whether CHS unlawfully withdrew recognition
from the union after March 2000. If the so-called Jefferson Chemical doctrine
does apply, then we "cannot conscientiously find that the evidence supporting
[the Board's] decision[s] is substantial" and must reverse. Webco Industries v.
NLRB, 217 F.3d 1306, 1311 (10th Cir. 2000) (internal quotations omitted).
Second, provided we conclude that the Board's findings are supported by
substantial evidence, we must determine whether the Board properly issued an
affirmative-bargaining order in Mimbres II.
A. Jefferson Chemical Preclusion Argument
CHS argues that because the Board in Mimbres I considered whether the
company had withdrawn recognition from the union, the issue of withdrawal
cannot be litigated again in later proceedings. In support of its argument, the
company points to the NLRB's 1972 decision in Jefferson Chemical Corporation.
In that decision, the Board held that where the General Counsel had already once
litigated a broad refusal-to-bargain charge, fairness concerns and the interests of
administrative economy precluded him from later litigating a related charge that
turned on the same set of facts: "[T]he General Counsel is dutybound to
investigate all matters which are encompassed by the [original] charge, and to
proceed appropriately thereafter." Jefferson Chemical, 200 NLRB at 992 n.3.
"[M]ultiple litigation of issues which should have been presented in the initial
proceeding constitutes a waste of resources and an abuse of our processes. . . ."
Id; see also Peyton Packing Co., 129 NLRB 1358 (1961).
The Board has made clear that this restriction is policy-based, not
jurisdictional, and is limited to those instances when the General Counsel
attempts to litigate "the same act or conduct as a violation of different sections of
the Act" or relitigates the "same charges in different cases." Cresleigh Mgmt.,
Inc., 324 NLRB 774, 774 (1997) (internal quotations omitted) (emphasis
removed).
CHS claims that Mimbres II and Mimbres III fit squarely within the
Jefferson Chemical prohibition. We fail to see the application. The General
Counsel has not attempted in these cases to relitigate claims raised and decided in
Mimbres I. Though unlawful withdrawal of recognition is a charge made in all
three cases, two separate withdrawals are at issue. The General Counsel argued
in Mimbres I that the company had unlawfully withdrawn recognition of the union
on or by March 23, 2000. The Board rejected this argument and found that no
withdrawal had occurred. In Mimbres II and III, the General Counsel has claimed
that the company's failure to bargain after the decision in Mimbres I constituted
an unlawful withdrawal of recognition. These are distinct factual scenarios,
giving rise to distinct claims.(1) The Jefferson Chemical doctrine is inapplicable
"because the facts and circumstances giving rise to the . . . allegation did not take
place until after the [earlier] case . . . was heard and decided." New Surfside
Nursing Home, 330 NLRB 1146, 1151 (2000); see also E.I. du Pont de Nemours
& Co., 311 NLRB 893, 908 (1993) (employer domination suit not barred by
earlier case alleging employer domination because the allegations in the second
case occurred months after the trial in the first case began); Great Western
Produce, Inc., 299 NLRB 1004, 1009 n.1 (1990) (Jefferson Chemical does not
(1) The ALJ in Mimbres II did note some possible, inadvertent overlap in
proof between the withdrawal allegations in Mimbres II and Mimbres I. She
cured the problem by refusing to consider any conduct by either party that
occurred before the last Mimbres I hearing on May 3, 2000. Mimbres II, 342
NLRB at 401.
apply to a claim premised on facts that occurred more than a year after the
hearing in the first case closed).
CHS tries to salvage its argument by claiming that the Board's factual
findings in Mimbres I reveal it lawfully withdrew recognition from the union in
November 1999.(2) Apparently CHS believes that if the withdrawal of recognition
in 1999 was lawful, the General Counsel may not argue that the company's
withdrawal became unlawful at a later date. But this argument is misconceived.
The Board in Mimbres I explicitly found that CHS had not withdrawn recognition
as of late March 2000, 337 NLRB at 1005, and this Court is in no position to
revisit that factual finding.
At oral argument, Respondent's counsel offered a variation on this theme,
contending that CHS had constructively-and lawfully-withdrawn recognition
from the union in the fall of 1999. Counsel placed great weight on the distinction
between constructive and actual withdrawal. We note that CHS made no such
distinction in its briefing to this Court, so to the extent the distinction makes a
difference, CHS has waived the argument. However, we doubt the distinction
amounts to much in this case. The Board in Mimbres I, II, and III considered and
rejected the argument CHS now offers as to why its "constructive" withdrawal in
1999 was lawful-namely, that the union had lost majority status. Mimbres I, 337
NLRB at 1005, Mimbres II, 342 NLRB at 401, Mimbres III, 342 NLRB at 348-49.
CHS complains that the Board in Mimbres II and III precluded it from offering
evidence pre-March 2000 regarding the union's majority status. Even were this
true, we fail to see the relevance. Surely if the union had not lost majority status
by May 2000, as held in Mimbres I, it had not lost it in November 1999, only to
regain it later. Given the factual findings in all three cases, if CHS did in fact
"constructively" withdraw in 1999, it was unlawful. But the company's actions in
the fall of 1999 are not at issue in this appeal. If CHS truly believed it had
constructively, and lawfully, withdrawn recognition, it should have made that
argument in Mimbres I. Its failure to do so will not prevent the Board from
considering whether it unlawfully withdrew recognition thereafter.
(2) We note with some irritation that CHS took precisely the opposite
position in Mimbres I, arguing there that it had not withdrawn recognition of the
union "on or about March 23, 2000." Petitioner Br., Addendum at 6, 3-4. The
company argued instead that its refusal to bargain was lawful because the union
had lost its majority status. Mimbres I, 337 NLRB at 1005. A refusal to bargain
is not synonymous with a withdrawal of recognition. The company shifted its
position in its reply brief to this Court: the company now argues that it did not
deny withdrawing recognition in Mimbres I, it only denied withdrawing
recognition "on or about March 23, 2000." Reply Br. 10. According to
Respondent's counsel, the company has never denied withdrawing recognition "in
the Fall of 1999." Id. at 10-11. This is too clever by half, and anyway, has no
legal relevance. In reaching its conclusion that no withdrawal had occurred by
March 2000, the ALJ in Mimbres I considered more than the company's actions
on a single date. The judge considered CHS's entire course of dealing with the
union: "Although there are in evidence letters from [the union representative] to
the Respondent's counsel which went unanswered, there is no evidence that the
Respondent in fact withdrew recognition. [The union representative] testified that
he has never received notice that the Respondent was withdrawing recognition."
337 NLRB at 1005.
CHS was free to contest the Board's conclusions in Mimbres II and
Mimbres III that the withdrawal of recognition after March 2000 was
unlawful-but that argument has nothing to do with Jefferson Chemical. To be
sure, the Administrative Law Judge found, in Mimbres II, that "[o]n November 2,
1999, Respondent [CHS] withdrew recognition of the Union." 342 NLRB at 400.
She did not, however, make any findings with regard to the withdrawal's
lawfulness, as that issue was not properly before her. Instead, she expressly
found that CHS unlawfully withdrew recognition after March 28, 2000, and she
reached that finding relying only on conduct "alleged to have occurred after the
conclusion" of Mimbres I. 342 NLRB at 401. The claims the ALJ considered and
ruled upon, then, were not litigated in Mimbres I and are not subject to Jefferson
Chemical preclusion.
In sum, the Board was not precluded from considering evidence of unlawful
withdrawal after March 2000 simply because the company had successfully
defeated an earlier charge that it withdrew unlawfully before March 2000.
Consequently, the company has not demonstrated that the Board's conclusions
were without foundation in the record.
B. Affirmative-Bargaining Order
In Mimbres II, Administrative Law Judge Lana Parke affirmatively directed
CHS to bargain with the union. CHS protests the order as an abuse of the Board's
authority under the Act. The company urges this Court to craft a new standard of
review for affirmative bargaining orders that would apply only when the employer
questions the majority status of the union. In other words, CHS asks us to write a
new standard to govern this case. We decline. As we have said time and again,
we will "afford substantial deference to the NLRB's selection of an appropriate
remedy." MJ Metal Products, Inc. v. N.L.R.B., 267 F.3d 1059, 1067 (10th Cir.
2001) (citing N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969)).
Because a remedial bargaining order involves mixed questions of law and fact, we
review it for abuse of discretion. Id. at 1065.
The Supreme Court has recognized that an affirmative bargaining order is
an appropriate response to a company's repeated refusal to negotiate. Franks
Bros. Co. v. N.L.R.B., 321 U.S. 702, 704-06 (1944); N.L.R.B. v. P. Lorillard Co.,
314 U.S. 512, 513 (1942) (per curiam). The Board in Mimbres II found that CHS
repeatedly refused to negotiate or to cease making unilateral employment policy
changes. We are aware that the District of Columbia Circuit requires the Board to
adopt additional findings to support a remedial bargaining order. Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). Even were we to
endorse that circuit's rule, we would find it satisfied here. The Mimbres II Board
carefully weighed the three factors enunciated by the D.C. Circuit in Vincent-the
employees' rights, the purposes of the Act, and the viability of alternative
remedies-and demonstrated why an affirmative bargaining order is appropriate
under each. In view of this explanation and having held that the Board's findings
in Mimbres II were supported by substantial evidence, we conclude that the
Board's decision to issue a remedial bargaining order did not constitute an abuse
of discretion.
III. CONCLUSION
We AFFIRM the judgment of the National Labor Relations Board in both
Mimbres II and Mimbres III.
FindLaw Career Center
- Search for Law Jobs:
Ads by FindLaw
Copyright © 2009 FindLaw, a Thomson Reuters business. All rights reserved.