The opinion
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
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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
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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.
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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-
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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.
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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
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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.