NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
T. Steele
Construction, Inc. and International
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 Foreman 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) discharge
any employee who signed a union card, and (3)
partially close its business if employees selected the Union 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 Counsel 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 Respondent’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 Oakwood Healthcare, Inc., 348 NLRB No.
37 (2006), in which the Board addressed the meaning of “assign,” “responsibly
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 decisions 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 Respondent’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 admitted the complaint allegation that Brink
was a supervisor 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 intervening 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 affirmed the judge’s denial of the employer’s motion to amend its
answer to deny a complaint allegation, previously admitted, that charge nurse
Smith was an employee. 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 supervisor. The Board found that the employer’s contention
was untimely, because it was not raised in the pleadings 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]
Moreover,
even though the Board’s decision in Oakwood
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 allegations 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 Complaint and Notice of Hearing [in the present case] had been
filed.” The Board’s issuance of the notice and invitation 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 “supervisor” was plainly under review, the Respondent
in 2005 chose to admit Brink’s supervisory status in its answer to the complaint,
rather than preserve the issue by denying that Brink was a supervisor.
Additionally,
even apart from the supervisory status allegation, 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 complaint allegation that Brink
was an agent of the Respondent.
Consequently,
the Respondent has failed to demonstrate extraordinary circumstances that would
warrant permitting it to withdraw its admission of the complaint allegation
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.[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 reconsideration
and rehearing is denied.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
[1] 348 NLRB No. 79.
[2] The Respondent filed a motion to strike
the General Counsel’s opposition 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 rehearing 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.
[3] The Respondent cites the Board’s
decisions in Rockspring Development, Inc.,
348 NLRB No. 75 (2006); Terry Machine Co.,
348 NLRB No. 55 (2006); and Loyalhanna
Care Center, 348 NLRB No. 54 (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
[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.
[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.”
[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 supervisory
status could not, without more, change an admitted allegation into a contested
issue.