T. Steele Construction, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 351 NLRB No. 55 1032 T. Steele Construction, Inc. and International Union of Operating Engineers, Local 150, AFL–CIO. Case 33–CA–14914 November 14, 2007 ORDER DENYING MOTION BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On November 30, 2006, the National Labor Relations Board issued its Decision and Order in this case,1 finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily reassigning and discharging employee Joe Farrell and violated Section 8(a)(1) of the Act by threatening to refuse employment to individuals because they were union members. The Board further found that the Respondent, through the actions of Fore- man Brian Brink, violated Section 8(a)(1) by creating the impression that employees’ union activities were under surveillance, coercively interrogating an employee about union activities, and threatening to (1) force an employee off the job because he was a union organizer, (2) dis- charge any employee who signed a union card, and (3) partially close its business if employees selected the Un- ion as their bargaining representative. The Board also denied, as untimely, the Respondent’s motion, filed after the judge’s decision had issued, for leave to amend its answer to the complaint to deny allegations, previously admitted, that Brink was a supervisor within the meaning of Section 2(11) of the Act and an agent within the meaning of Section 2(13) of the Act. On December 29, 2006, the Respondent filed a motion for reconsideration and rehearing and, on March 5, 2007, the General Coun- sel filed an opposition to the Respondent’s motion.2 In its motion, the Respondent requests that the full Board rehear or reconsider the decision to deny the Re- spondent’s motion for leave to amend its answer to the complaint. The Respondent contends that its motion should be granted in light of the Board’s decision in Oak- wood Healthcare, Inc., 348 NLRB 686 (2006), in which the Board addressed the meaning of “assign,” “responsi- bly to direct,” and “independent judgment,” as those terms are used in Section 2(11) of the Act, which defines the term “supervisor.” The Respondent relies on deci- 1 348 NLRB 1173. 2 The Respondent filed a motion to strike the General Counsel’s op- position as untimely. The motion is denied, as the Board’s Rules do not specify a time limit for the filing of an opposition to motions for rehear- ing or reopening, and the General Counsel’s opposition was filed within a sufficient period of time for the Board to consider it before issuing this Order. sions in which the Board has remanded cases for further consideration in light of Oakwood Healthcare.3 The National Labor Relations Board has delegated its authority in this proceeding to the panel that participated in the Decision and Order.4 Having duly considered the matter, we deny the Re- spondent’s motion for the following reasons. Unlike the cases cited by the Respondent in which the Board has reconsidered supervisory status in light of Oakwood Healthcare, in the present case Brink’s supervisory status never was placed in issue, because the Respondent ad- mitted the complaint allegation that Brink was a supervi- sor within the meaning of Section 2(11) of the Act, and did not change that position until after the hearing closed. The Board has declined to retroactively apply an inter- vening change in law when, as here, a party has failed to preserve the issue arguably affected by the change. Thus, in Yesterday’s Children, Inc.,5 the Board af- firmed the judge’s denial of the employer’s motion to amend its answer to deny a complaint allegation, previ- ously admitted, that charge nurse Smith was an em- ployee. Relying on the Supreme Court’s newly issued decision in NLRB v. Health Care & Retirement Corp. of America,6 the employer contended that Smith was a su- pervisor. The Board found that the employer’s conten- tion was untimely, because it was not raised in the plead- ings or at hearing. The court of appeals affirmed the Board’s ruling.7 Likewise, in Opportunity Homes,8 the employer moved, in light of Health Care & Retirement Corp., to amend its answer concerning the supervisory status of its licensed practical nurses (LPNs) and to withdraw from its stipulation that the LPNs were employees. The Board denied the motion, as the employer had failed to preserve the issue for appeal. The court of appeals enforced the Board’s decision.9 Accordingly, our denial of the Respondent’s motion to amend its answer to deny the allegation that Brink was a supervisor is consistent with Board precedent.10 3 The Respondent cites the Board’s decisions in Rockspring Devel- opment, Inc., 348 NLRB 1132 (2006); Terry Machine Co., 348 NLRB 919 (2006); and Loyalhanna Care Center, 348 NLRB 917 (2006). 4 The Board has been polled at the request of one of the members of the original panel, and a majority has not voted in favor of rehearing or reconsideration by the full Board. 5 321 NLRB 766 (1996), enfd. in relevant part 115 F.3d 36 (1st Cir. 1997). 6 511 U.S. 571 (1994). 7 Yesterday’s Children, Inc., above, 115 F.3d 36. 8 315 NLRB 1210 (1994), enfd. 101 F.3d 1515 (6th Cir. 1996). 9 Opportunity Homes, Inc., above, 101 F.3d 1515. 10 We find unpersuasive the Respondent’s contentions that the Board’s decisions in Yesterday’s Children and Opportunity Homes are distinguishable from the present case. T. STEELE CONSTRUCTION, INC. 1033 Moreover, even though the Board’s decision in Oak- wood Healthcare was issued after the Respondent filed its answer to the General Counsel’s complaint in this case, the Respondent had reason to know at the time that it filed its answer that the Board’s interpretation of the term “supervisor” as defined in Section 2(11) of the Act was under review. The General Counsel issued his complaint against the Respondent in August 2005. In September 2005, the Respondent filed its answer admitting the complaint al- legations that Brink was a supervisor and an agent of the Respondent. As the Respondent itself acknowledged in its motion for leave to amend its answer to the complaint, “the standards for applying factual considerations dealing with the supervisory status of employees . . . were plainly under consideration by the Board since July 23, 2003 [when the Board issued its notice and invitation to file briefs in Oakwood Healthcare], long before the Com- plaint and Notice of Hearing [in the present case] had been filed.” The Board’s issuance of the notice and invi- tation to file briefs in Oakwood Healthcare was, in turn, prompted in part by the Supreme Court’s decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), in which the Court took issue with certain aspects of the Board’s interpretation of the term “supervisor” as defined in Section 2(11) of the Act.11 Nevertheless, even though the Board’s interpretation of the term “supervi- sor” was plainly under review, the Respondent in 2005 chose to admit Brink’s supervisory status in its answer to 11 Specifically, the Court disagreed with the Board’s interpretation of the term “independent judgment” as set forth in Sec. 2(11) of the Act to exclude the exercise of “ordinary professional or technical judgment in directing less skilled employees to deliver services.” the complaint, rather than preserve the issue by denying that Brink was a supervisor. Additionally, even apart from the supervisory status al- legation, Oakwood Healthcare did not address or in any way alter the Board’s interpretation of the term “agent” as defined in Section 2(13) of the Act. Thus, the Board’s issuance of Oakwood Healthcare provided no basis for the Respondent to withdraw its admission of the com- plaint allegation that Brink was an agent of the Respon- dent. Consequently, the Respondent has failed to demon- strate extraordinary circumstances that would warrant permitting it to withdraw its admission of the complaint allegation that Brink was a supervisor within the mean- ing of Section 2(11) of the Act and an agent within the meaning of Section 2(13) of the Act.12 Accordingly, we shall deny the Respondent’s motion as lacking in merit and raising no issue not previously considered. ORDER IT IS ORDERED that the Respondent’s motion for recon- sideration and rehearing is denied. 12 The Respondent’s ancillary argument that the pleadings should be amended to conform to the evidence is similarly misplaced. The mere introduction, at hearing, of evidence arguably relevant to Brink’s su- pervisory status could not, without more, change an admitted allegation into a contested issue.