                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


            Argued September 1, 1998   Decided September 29, 1998


                                 No. 97-1454


                   Thomas-Davis Medical Centers, P.C. and 

                        FPA Medical Management, Inc., 

                                 Petitioners


                                      v.


                       National Labor Relations Board, 

                                  Respondent


             Federation of Physicians and Dentists/AHPE, NUHHCE, 

                              AFSCME, AFL-CIO, 

                                 Intervenors


 


 




                                 No. 97-1660

                        FPA Medical Management, Inc., 
                                  Petitioner

                                      v.

                       National Labor Relations Board, 
                                  Respondent

                 United Health Care Employees/AHPE, NUHHCE, 
                              AFSCME, AFL-CIO, 
                                 Intervenors


                On Petitions for Review and Cross-Applications
                       for Enforcement of Orders of the
                        National Labor Relations Board


     Minh N. Vu argued the cause for the petitioners.  Mau-
reen E. Mahoney and Gregg J. Tucek were on brief.

     Julie B. Broido, Attorney, National Labor Relations Board, 
argued the cause for the respondent.  Linda Sher, Associate 
General Counsel, John D. Burgoyne, Acting Deputy Associate 
General Counsel, and Peter D. Winkler, Attorney, were on 
brief.

     Susan J. Martin argued the cause for the intervenors.

     Before:  Edwards, Chief Judge;  Henderson and Garland, 
Circuit Judges.

     Opinion for the court filed by Circuit Judge Henderson.

     Karen LeCraft Henderson, Circuit Judge:  Petitioners 
Thomas-Davis Medical Centers, P.C. (TDMC) and its sole 
shareholder FPA Medical Management, Inc. (FPA) seek re-
view of two separate decisions of the National Labor Rela-
tions Board (NLRB, Board) that concluded the petitioners 


violated section 8(a)(1), (5) of the National Labor Relations 
Act (NLRA, Act), 29 U.S.C. s 158(a)(1), (5).  The Board 
found that TDMC unlawfully refused to bargain with, sequen-
tially:  (1) the Federation of Physicians and Dentists, AHPE, 
NUHHCE, AFSCME, AFL-CIO, (Physician Union), which 
had been certified as the bargaining representative of physi-
cians at TDMC's six medical clinics in Pima County, Arizona, 
Thomas-Davis Med. Ctrs., P.C., 324 N.L.R.B. No. 15 (July 
24, 1997), and (2) the United Health Care Employees, 
NUHHCE, AFSCME, AFL-CIO, (Staff Union), which had 
been certified as the bargaining representative of support 
staff at TDMC's clinics, FPA Medical Management, Inc., 324 
N.L.R.B. No. 128 (Oct. 22, 1997).  In each case the Board 
determined that its "no-relitigation" rule precluded TDMC 
from arguing that its physicians were statutory "supervi-
sors" 1 of support staff after TDMC voluntarily withdrew the 
issue during the evidentiary hearing to determine the appro-
priate bargaining unit at the start of the Physician Union 
representation proceedings.  FPA petitioned for review of 
each of the NLRB's two final unfair labor practice decisions, 
contending that it was not afforded an opportunity in either 
case to show that the TDMC physicians were statutory 
supervisors by virtue of their supervision of support staff.  
The Board filed a cross-application for enforcement of each 
decision.  The court has jurisdiction under section 10(e)-(f) of 
the NLRA, 29 U.S.C. s 160(f).  For the reasons set out 
below, we slice the baby in twain:  we deny review and grant 
enforcement of the Physician Union decision and we remand 
the Staff Union case for the Board to explain its application of 

__________
     1 The NLRA excludes from its definition of "employee ... any 
individual employed as a supervisor."  29 U.S.C. s 152(3).  A 
"supervisor" is defined as "any individual having authority, in the 
interest of the employer, to hire, transfer, suspend, lay off, recall, 
promote, discharge, assign, reward, or discipline other employees, 
or responsibly to direct them, or to adjust their grievances, or 
effectively to recommend such action, if in connection with the 
foregoing the exercise of such authority is not of a merely routine 
or clerical nature, but requires the use of independent judgment."  
Id. s 152(11).



the no-relitigation rule to bar litigation of the supervision 
issue in the representation and unfair labor practice proceed-
ings based on TDMC's earlier waiver of the argument in the 
Physician Unit representation proceeding.  We address each 
petition separately.

                         I.  The Physician Union Case

     On September 4, 1996 the Physician Union petitioned the 
Board for certification as the exclusive representative of 
TDMC's "Regular Full Time and Regular Part-time Physi-
cians, including physicians elected Department Chairper-
sons."  TDMC, then a wholly owned subsidiary of Foundation 
Health Corporation (Foundation), opposed the certification 
petition on various grounds, including that the physicians 
were statutory supervisors because, inter alia, they super-
vised support staff.2  An evidentiary hearing was conducted 
in late September 1996 to determine whether the proposed 
bargaining unit was appropriate.  Toward the end of the 
hearing TDMC expressly withdrew its support staff supervi-
sion argument.  At the time FPA had entered an agreement 
to purchase all of TDMC's stock from Foundation with the 
transfer planned for the beginning of October 1996.  Al-
though acquisition was delayed "due to a routine audit by the 
Securities and Exchange Commission," FPA began managing 
TDMC on October 1, 1996 under a management agreement 
with Foundation.  Joint Appendix (JA) 2, 6.

     On November 8, 1996 the Board's Regional Director issued 
a decision and direction of election which rejected TDMC's 
arguments that the doctors were supervisors (except the 
withdrawn supervision argument which the decision did not 
address).  On November 26, 1996 TDMC filed a request for 
review of the Regional Director's decision on a number of 
grounds but did not seek to revive the support staff supervi-
sion argument.  On December 19, 1996 FPA, which had 

__________
     2 TDMC also argued that the proposed unit's state-wide scope 
was inappropriate and that the physicians were supervisors or 
managers because they supervised seven allied health professionals 
and participated in standing committees and task forces.


finally acquired TDMC's stock effective November 29, 1996, 
filed a notice of appearance in the NLRB proceeding.  On 
January 7, 1997 the Board issued a brief order denying 
TDMC's request for review.

     On January 8, 1997 FPA filed a motion for rehearing and to 
reopen the record "[i]n order to provide FPA with an oppor-
tunity to present its position to the Board, and in order that 
the Board may consider evidence of changes in operations 
which have been implemented by FPA after its acquisition of 
those operations and which impact the issues raised in the 
Board's decision."  JA 433-34.  On January 17, 1997 the 
Board denied the motion because FPA "fail[ed] to specify 
what additional evidence it would adduce and how, if adduced 
and credited, such evidence would require a different result."  
JA 436.

     On February 19, 1997 FPA filed another motion for rehear-
ing or to reopen the record on the ground that it had had no 
opportunity to participate in the proceeding "until after the 
hearing on September 26, 27 and 30, and after the Regional 
Director's Decision and Direction of Election had issued."  
JA 439.  The motion was accompanied by an affidavit alleg-
ing, for the first time since the issue was withdrawn during 
the September 1996 hearing, that TDMC's physicians super-
vised the clinics' support staff employees.3  On March 18, 
1997 the Board issued an order denying the motion "as it is 
untimely and because it does not establish the existence of 
newly discovered evidence."  JA 448.

     In the meantime, the Physician Union had prevailed in a 
union election on December 5, 1996 and had been certified on 
February 3, 1997 as the collective bargaining agent for the 
TDMC physicians.  From February 15 through March 21, 
1997 the Physician Union made several demands that TDMC 
bargain with it.  On March 24, 1997 TDMC's lawyer respond-
ed:  "Your demand for bargaining is rejected since the unit is 

__________
     3 Although FPA indicated in its January 8, 1997 motion that it 
intended to produce evidence of post-acquisition operational 
changes relevant to the physicians' supervisory status, the affidavit 
alleged none.


improperly certified."  JA 482.  The Board's General Counsel 
subsequently filed a complaint charging FPA with an unfair 
labor practice for refusing to bargain.4  TDMC and FPA 
admitted refusing to bargain but asserted as a defense that 
TDMC was "not required to bargain with the [Physician 
Union] because [the Physician Union] does not represent an 
appropriate unit under the National Labor Relations Act."  
JA 483-84.  On July 24, 1997 the Board granted summary 
judgment against TDMC and FPA, ordering them to cease 
and desist unfair labor practices and to bargain with the 
Physician Union.  The Board summarily explained its deci-
sion as follows:

     All representation issues raised by the Respondents were 
     or could have been litigated in the representation pro-
     ceeding.  The Respondents do not offer to adduce at a 
     hearing any newly discovered and previously unavailable 
     evidence, nor do they allege any special circumstances 
     that would require the Board to reexamine the decision 
     made in the representation proceeding.  We therefore 
     find that the Respondents have not raised any issue that 
     is properly litigable in this unfair labor practice proceed-
     ing.  See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 
     146, 162 (1941).  Accordingly, we grant the General 
     Counsel's Motion for Summary Judgment.

324 N.L.R.B. No. 15, slip op. at 1-2.

     FPA petitions for review of the NLRB's unfair labor 
practice decision on the ground that the Board acted arbi-
trarily when it refused to reopen the evidentiary record.  We 
reject FPA's challenge because the Board's refusal was not 
an abuse of discretion.  See Road Sprinkler Fitters Local 
Union No. 669 v. NLRB, 789 F.2d 9, 14 (D.C. Cir. 1986) ("[A] 
decision to reopen the record is within the Board's discre-
tion.") (citing Road Sprinkler Fitters Local Union No. 669 v. 

__________
     4 "Refusing to bargain and thereby engendering an unfair labor 
practice complaint is the standard route to challenge a certification 
order, which is not subject to direct review."  B B & L, Inc. v. 
NLRB, 52 F.3d 366, 369 n.2 (D.C. Cir. 1995) (citations omitted).



NLRB, 676 F.2d 826, 829 n.10 (D.C. Cir. 1982));  NLRB v. 
Amalgamated Clothing & Textile Workers Union, 662 F.2d 
1044, 1045 (4th Cir. 1981)).

     "It is well established that, in the absence of newly discov-
ered evidence or other special circumstances requiring reex-
amination of the decision in the representation proceeding, a 
respondent is not entitled to relitigate in a subsequent 
refusal-to-bargain proceeding representation issues that were 
or could have been litigated in the prior representation 
proceeding."  Westwood One Broadcasting Servs., Inc., 323 
N.L.R.B. No. 175, 1997 WL 331,860, at *1 (June 16, 1997) 
(citing Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 
(1941)), enforced, No. 97-3495 (3d Cir. July 28, 1998);  see also 
29 C.F.R. s 102.67(f) ("Failure to request review [within 14 
days after regional director's unit decision] shall preclude 
such parties from relitigating, in any related subsequent 
unfair labor practice proceeding, any issue which was, or 
could have been, raised in the representation proceeding.");  
Soft Drink Workers Union Local 812 v. NLRB, 937 F.2d 684, 
688 (D.C. Cir. 1991);  NLRB v. Mar Salle, Inc., 425 F.2d 566, 
571-72 (D.C. Cir. 1970);  Amalgamated Clothing Workers of 
Am. v. NLRB, 365 F.2d 898, 903-06 (D.C. Cir. 1966).

     FPA offered no "newly discovered evidence" to justify 
deviating from the general no-relitigation rule but contends it 
demonstrated special circumstances, namely, that in Septem-
ber 1996 TDMC's then-owner Foundation had "different in-
centives" from FPA, which motivated Foundation to withdraw 
the supervision argument--a step FPA, had it then owned 
TDMC, would not have taken.  Even assuming conflicting 
interests between the successive owners--and we do not 
claim to comprehend entirely the conflict argument urged--
FPA has not explained why its inertia persisted as long as it 
did.5  FPA declined to participate in the NLRB representa-

__________
     5 The Board "has recognized that a stock transfer is 'the continu-
ing existence of a legal entity, albeit under new ownership.' 
Hendricks-Miller Typographic Co., 240 NLRB 1082, 1083 fn. 4 
(1979)," and "has also held that the 'mere change of stock ownership 
does not absolve a continuing corporation of responsibility under 



tion proceeding, not only during the September 1986 eviden-
tiary hearing but even after FPA assumed management of 
TDMC on October 1, 1996 and for weeks after it acquired the 
company outright on November 29, 1996.  It was not until 
December 19, 1996, almost six weeks after the Regional 
Director's decision that the physicians were not supervisors, 
that FPA even filed a notice of appearance.  No further 
action was taken until January 18, 1997 when FPA filed a 
motion for rehearing and to reopen the record.  Yet even 
then FPA made no attempt to revive the waived supervision 
argument.  Given FPA's sustained torpor throughout this 
period, we cannot say that the Board abused its discretion in 
refusing to consider the argument when finally asserted in 
support of FPA's February 19, 1997 motion.

                          II. The Staff Union Case 


     In December 24, 1996 the Staff Union filed a petition for 
certification as bargaining representative of TDMC's support 
staff employees.  A "stipulation" election was conducted on 
February 13, 1997 and the union prevailed.6

     On February 20, 1997 FPA filed objections to the Staff 
Union election based on "[s]upervisory and management per-
sonnel interference on behalf of the union petitioner in the 
non-supervisory employees' election decision which likely im-
paired the employees' freedom of choice in the election" and 
"[o]ther acts of interference which restrained, coerced or 
interfered with the employees' section 7 rights."  JA 860.  On 
February 28, 1997 FPA filed supporting affidavits alleging 
specific unlawful pro-union activities by physician supervisors.  

__________
the Act.'  Miller Trucking Services, 176 NLRB 556 (1969), affd. in 
this respect 445 F.2d 927 (10th Cir. 1971), and relied on in Topin-
ka's Country House, 235 NLRB 72, 74 (1978), enfd. 624 F.2d 770 
(6th Cir. 1980)."  Rockwood Energy & Mineral Corp., 299 N.L.R.B. 
1136, 1139 (1990), enforced, 942 F.2d 169 (3d Cir. 1991).

     6 A "stipulation" election is one held pursuant to an agreement 
between the employer and the union "waiving a representation 
hearing and agreeing to terms for holding an election."  Smith & 
Smith Aircraft Co. v. NLRB, 735 F.2d 1215, 1216 (10th Cir. 1984).


On March 5, 1997 the Regional Director recommended that 
FPA's objections be overruled and that the Staff Union be 
certified because the physicians' supervisory status "was pre-
viously and comprehensively litigated" in the Physician Union 
proceeding.  JA 881.  TDMC filed a request for review of the 
Regional Director's recommendation on March 18 1997 and a 
revised request for review on March 24, 1997.  On June 10, 
1997 the Board issued a decision summarily rejecting 
TDMC's objections to the Regional Director's report and 
recommendation, adopting his findings and recommendations 
and certifying the Staff Union as the representative of sup-
port staff employees.

     When TDMC subsequently refused to bargain with the 
Staff Union, the General Counsel again filed an unfair labor 
practice complaint against FPA.  As a defense FPA asserted 
it did "not have an obligation to bargain with the [Staff 
Union] because supervisory personnel interfered with the 
Union election."  JA 1050.  On October 22, 1997 the Board 
again granted summary judgment against FPA, stating, in 
language almost identical to that in the July 24, 1997 Physi-
cian Union decision:

     All representation issues raised by the Respondent were 
     or could have been litigated in the prior representation 
     proceeding.  The Respondent does not offer to adduce at 
     a hearing any newly discovered and previously unavail-
     able evidence, nor does it allege any special circum-
     stances that would require the Board to reexamine the 
     decision made in the representation proceeding.  We 
     therefore find that the Respondent has not raised any 
     representation issue that is properly litigable in this 
     unfair labor practice proceeding.  See Pittsburgh Plate 
     Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).  According-
     ly, we grant the Motion for Summary Judgment.

324 N.L.R.B. No. 128, slip op. at 1.

     As in the Physician Union case, FPA contends that the 
Board's use of the no-relitigation rule improperly deprived 
FPA of all opportunity to raise the staff supervision issue.  In 
this case, which arrives in a different posture from the 



Physician Union case--and, as far as we can tell, a unique 
one--we conclude that the Board failed to adequately explain 
its reliance on the rule in light of past practice.

     The no-relitigation rule, as formulated in the Board's case 
law and rules, bars relitigation of a waived issue only in an 
unfair labor practice proceeding that is "related" to the 
proceeding in which the waiver occurred.  See 29 C.F.R. 
s 102.67(f) and Westwood One Broadcasting Servs., Inc., 323 
N.L.R.B. No. 175, 1997 WL 331,860, at *1 (both quoted supra, 
p. 7.  It is by no means clear that the Staff Union proceed-
ings, in which the no-relitigation bar was invoked, were 
"related," as the Board has previously used the term, to the 
Physician Union representation proceeding in which TDMC 
waived the supervision argument.  In the past the Board has 
applied its rule in unfair labor practice proceedings 7 to 
preclude relitigation of an issue that could have been raised in 
an earlier proceeding in the same case involving the same 
local and the same bargaining unit.  By contrast, here the 
Board invoked the rule as a bar during the Staff Union 
certification proceeding based on the fact that TDMC could 
have raised the supervision argument in the separate Physi-
cian Union case which addressed whether a different local 
was to represent a different bargaining unit.  The Board 
must provide a reasoned explanation, either consistent with 
precedent or explaining its departure therefrom, if it chooses 
to so expand the rule's scope and it has offered none.  See 
Hicks v. NLRB, 880 F.2d 1396, 1400 (D.C. Cir. 1989) (re-
manding to Board "for further action either consistent with 
its existing precedents or for generation of a new jurisdiction-
al rule" where Board decision below "revealed no reasoning 
by which to fit its extension of jurisdiction");  ConAgra, Inc. v. 
NLRB, 117 F.3d 1435, 1443-44 (D.C. Cir. 1997) ("[I]t is 
'axiomatic that an agency adjudication must either be consis-
tent with prior adjudications or offer a reasoned basis for its 

__________
     7 The Board has limited a "related" unfair trade practice proceed-
ing to one which involves a s 8(a)(5) refusal-to-bargain charge, 
expressly excluding from the rule's coverage s 8(a)(1) and s 8(a)(3) 
proceedings.  See Clark & Wilkins Indus., Inc. v. NLRB, 887 F.2d 
308, 316 (D.C. Cir. 1989), cert. denied, 495 U.S. 934 (1990).



departure from precedent.' ") (quoting Kelley v. FERC, 96 
F.3d 1482, 1489 (D.C. Cir. 1996)).  Neither the summary 
certification decision of June 10, 1997 nor the boilerplate 
language in the October 22, 1997 unfair labor practice order 
satisfies this standard.  Accordingly, the matter must be 
remanded to the Board for explanation.

     For the preceding reasons we deny the petition for review 
and enforce the Board's bargaining order in the Physician 
Union case (No. 97-1454) and deny enforcement and grant 
review in the Staff Union case (No. 97-1660).  We remand in 
the latter for the Board to explain whether and, if so, how the 
Staff Union refusal-to-bargain and certification proceedings 
are "related" to the Physician Union representation proceed-
ing so as to come within the scope of the Board's no-
relitigation rule.  If the Board cannot do so, it must reconsid-
er the staff supervision issue, as appropriate, in the Staff 
Union case.

                                             So ordered.


                                               
