T. Steele Construction, Inc.

National Labor Relations Board - Board Decisions

Nov 14, 2007

351 N.L.R.B. 1032 (N.L.R.B. 2007)

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.