DHSC, LLC, d/b/a AFFINITY MEDICAL CENTER, COMMUNITY HEALTH SYSTEMS, INC., HOSPITAL OF BARSTOW INC.,

880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 68 DHSC, LLC d/b/a Affinity Medical Center, Commu- nity Health Systems, Inc., Hospital of Barstow Inc. d/b/a Barstow Community Hospital, Wat- sonville Hospital Corporation d/b/a Watsonville Community Hospital, Community Health Sys- tems, Inc. and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers and National Nurses Organizing Committee (NNOC), Cali- fornia Nurses Association/National Nurses Or- ganizing Committee (CNA/NNOC) and Califor- nia Nurses Association (CNA), National Nurses United Greenbrier VMC, LLC d/b/a Greenbrier Valley Med- ical Center, Community Health Systems, Inc., and Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers and National Nurses Or- ganizing Committee (NNOC), AFL–CIO Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center, Community Health Systems, Inc., and Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers and National Nurses Organizing Committee (NNOC), AFL– CIO Hospital of Barstow, d/b/a Barstow Community Hos- pital, Community Health Systems, Inc., and Community Health Systems Professional Ser- vices Corporation, LLC, a single employer and/or joint employers and California Nurses Association/National Nurses Organizing Com- mittee (CNA/NNOC), AFL–CIO. Cases 08–CA– 167313, 10–CA–167330, 10–CA–168085, and 31– CA–167522 August 10, 2016 ORDER1 BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN The motion for summary judgment filed by Respond- ents Affinity Medical Center, Barstow Community Hos- pital, Watsonville Community Hospital, Bluefield Re- gional Medical Center, and Greenbrier Valley Medical Center (collectively the Hospitals) in Case 08–CA– 167313, Cases 10–CA–167330 and 10–CA–168085, and Case 31–CA–167522 is denied for the reasons set forth below. 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Background. At the hearing in DHSC, LLC d/b/a Af- finity Medical Center, Community Health Systems, Inc. and/or Community Health Systems Professional Services Corp., LLC, Cases 08–CA–117890 et al. (DHSC), a pro- ceeding involving many of the same parties as in these above-captioned cases, the General Counsel orally moved to consolidate the complaint in each of the three above-captioned cases (the three complaints) with the amended consolidated complaint in DHSC. The judge denied the motions to consolidate, and the General Counsel filed with the Board a request for special per- mission to appeal the judge’s ruling. The Hospitals sub- mitted a document in response to the General Counsel’s request, entitled “Respondent Hospitals’ Response to General Counsel’s Request for Special Permission to Appeal, and Cross-Motion for Summary Judgment.” In an Order issued today in DHSC, we denied the Gen- eral Counsel’s appeal, finding that the judge did not abuse her discretion in denying the General Counsel’s motions to consolidate the three complaints with the amended consolidated complaint in Cases 08–CA– 117890 et al. In their opposition brief in DHSC, the Hospitals argued that because the charges on which the three complaints are based were filed before the issuance of the amended consolidated complaint and the opening of that hearing, the three complaints are litigation-barred in accordance with Jefferson Chemical Co., 200 NLRB 992 (1972), and Peyton Packing Co., 129 NLRB 1358 (1961). The Hos- pitals contended, citing Highland Yarn Mills, 310 NLRB 644, 644 (1993), vacated 315 NLRB 1169 (1994), that the General Counsel may not litigate an unfair labor practice allegation predicated on events which the Gen- eral Counsel knew or should have known about when issuing an earlier complaint or at the time of trial in that earlier complaint, if that allegation is of the same gen- eral nature as, or is related to, an allegation in an earlier complaint. The Hospitals asserted that the allegations of the three new complaints are “of the same general nature” as those in the amended consolidated complaint, and that, having been omitted from that complaint, they may not be tried in this or a subsequent proceeding. In the concluding paragraph of their brief, the Hospitals requested that the Board deny the General Counsel’s appeal and award summary judgment in their favor in connection with the allegations set forth in the three complaints. Thus, the Hospitals relied on their Jeffer- son Chemical argument not only in opposition to the Gen- eral Counsel’s appeal, but also as the basis for their cross- motion for summary judgment concerning the three com- plaints in Case 08–CA–167313, Cases 10–CA–167330 and 10–CA–168085, and Case 31–CA–167522. DHSC, LLC, D/B/A AFFINITY MEDICAL CENTER, COMMUNITY HEALTH SYSTEMS, INC., AND/or COMMUNITY HEALTH SYSTEMS PROFESSIONAL SERVICES CORPORATION, LLC 881 Discussion. First, we observe that in a prior case in- volving Respondent CHSI, the Board adopted the admin- istrative law judge’s finding that “Highland Yarn has been largely overruled and Jefferson Chemical and Pey- ton Packing have been narrowly limited [to their factual situations].” Mimbres Memorial Hospital, 342 NLRB 345, 348 (2004), enfd. 483 F.3d 683 (10th Cir. 2007) (Mimbres). In affirming the Board’s decision in that case, the Tenth Circuit noted that for reasons of fairness and administrative economy, the General Counsel may not twice litigate related charges that turn on the same set of facts. The court, like the Board, emphasized, howev- er, the narrow scope of Jefferson Chemical and Peyton Packing: The Board has made clear that this restriction is policy- based, not jurisdictional, and is limited to those instanc- es 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 re- moved). 483 F.3d at 686; see also New Surfside Nursing Home, 330 NLRB 1146, 1151 (2000). Neither of the circumstances articulated in this precedent arises in the present case, yet the Hospitals persist in asserting the same argument. As these cases show, Jefferson Chemical and Peyton Packing apply only to cases involving the relitigation of the same conduct. Here, as in Mimbres, the new allega- tions in the three complaints are factually independent from those under consideration in the current proceeding. See also Service Employees Local 87 (Cresleigh Mgmt.), supra (judge appropriately denied motion to dismiss alle- gations not consolidated by General Counsel, because new allegations sufficiently unrelated to those previously litigated); Maremont Corp., 249 NLRB 216, 217 (1980) (General Counsel not precluded from litigating separate allegation known at time of hearing in earlier proceed- ing).2 We find, therefore, that the allegations of the three new complaints in Case 08–CA–167313, Cases 10–CA– 167330 and 10–CA–168085, and Case 31–CA–167522 can be tried separately without sacrificing fairness and economy. Second, we find that the Respondent’s argument that the new allegations may not be litigated at all, either in DHSC or any other proceeding, is inconsistent with the purposes of the Act. The Hospitals’ expansive interpre- tation of Jefferson Chemical would present the Board with two unacceptable alternatives: either to delay the adjudication of previous allegations and the potential remedies owed to employees based on them in order to permit the inclusion of new allegations that may arise, or to disregard the alleged unfair labor practices raised in subsequently filed charges and permanently deprive the affected employees of any possible remedy at all. Both of these choices would hinder the Board’s performance of its statutory duties and deprive employees of the pro- tections afforded to them by the Act. Moreover, “[t]o accept the Respondent’s argument . . . [would] allow a respondent to delay indefinitely the ultimate litigation of any charges by simply engaging in further unlawful con- duct. Such a result is completely at odds with the pur- poses and policies of the Act.” Harrison Steel Castings Co., 255 NLRB 1426, 1427 (1981). See also Service Employees Local 87 (Cresleigh Mgmt.), supra at 775– 776. Accordingly, we deny the Hospitals’ motion for sum- mary judgment. 2 Indeed, in Maremont Corp., as here, the Board permitted the Gen- eral Counsel to separately litigate the new complaint allegations after the judge denied the General Counsel’s request to consolidate those allegations in the existing complaint. See also Detroit Newspapers, 330 NLRB 524, 526 (2000) (“Where as here the [r]espondents opposed the General Counsel’s earlier motions to amend the underlying consolidat- ed complaint, they cannot now claim that it is a breach of due process to have two separate hearings.”).