NLRB v. Wolf Creek Nuclear Operating ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v. No. 18-9521
(NLRB No. 14-CA-181053)
WOLF CREEK NUCLEAR OPERATING
CORPORATION,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
_________________________________
In 2016, the International Brotherhood of Electrical Workers, Local 225 (the
Union) filed a petition with the National Labor Relations Board (the Board) seeking to
represent certain purchasing employees of Wolf Creek Nuclear Operating Corporation,
Buyers I, II, and III, and the Lead Buyer (the Buyers). Wolf Creek opposed the Union’s
petition, claiming the Buyers were managerial employees—as decided by a previous
Regional Director’s decision in 2000—and therefore were excluded from coverage under
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the National Labor Relations Act (the Act). After a series of appeals and remands, the
Regional Director concluded there had been material changes in circumstances that
warranted relitigating the Buyers’ managerial status and, upon reconsideration, found the
Buyers were nonmanagerial employees. Consistent with the Board’s decision, the Buyers
voted on and approved representation by the Union.
Wolf Creek refused to bargain with the Union on behalf of the Buyers. As a result,
the Board found Wolf Creek had engaged in unfair labor practices, in violation of
sections 8(a)(1) and (a)(5) of the Act. The Board then filed an enforcement application
with this court. Wolf Creek opposes enforcement, arguing the 2000 decision should have
been given res judicata effect and that the Buyers are managerial employees. Reviewing
for substantial evidence, we conclude the Regional Director’s findings of changed
circumstances and nonmanagerial status were supported. Therefore, exercising
jurisdiction under 29 U.S.C. § 160(e), we GRANT the application for enforcement.
I. BACKGROUND
A. Factual History1
The Buyers procure all goods and services, except nuclear fuel, for Wolf Creek.
To qualify as a Buyer, an individual must meet a combination of educational and
professional criteria, with higher levels of both required for each successive level of
Buyer—Buyer I, Buyer II, Buyer III, and Lead Buyer. The Buyers are required to train
1
This factual history is taken from the Regional Director’s decisions: Decision &
Direction of Election, No. 14-RC-168543 (Feb. 16, 2016) [hereinafter 2016 Decision],
and Supplemental Decision, No. 14-RC-168543 (May 9, 2017) [hereinafter 2017
Decision]. We address Wolf Creek’s challenge to these findings in the discussion section.
2
for and receive certifications from the Institute of Supply Management and to keep
current with continuing education requirements. Wolf Creek pays for the initial training
and certification and offers classes to cover the continuing education requirements. All
Buyers report to a supervisor and none of the Buyers supervise any other employee.
Wolf Creek has adopted an Administrative Control Procedure (ACP) that
establishes guidelines for procuring materials. The ACP applies not only to the Buyers
but also to other employees involved in the procurement process. The procurement
process also utilizes EMPAC, a computer system designed to streamline purchases. To
put the parties’ arguments in context, we provide a brief overview of the procurement
process at Wolf Creek.
The procurement process begins when an employee sends a requisition to the
purchasing department via EMPAC. The requisition includes the item requested, the
quantity needed, the item’s authorized purchase price, and previous purchase prices. All
requisitions must be submitted by an employee with purchasing authority and authorized
by a supervisor or manager from the requesting department. Management assigns
employees different levels of purchasing authority. The Buyers are not involved in
creating requisitions or authorizing employees to submit requisitions.
After the requisition is submitted, the Buyers’ supervisor assigns the requisition to
a Buyer based on the type of item requested. The Buyer’s purchasing authority for the
requisition is dictated by the requestor’s level of purchasing authority. The Buyer has no
authority to purchase without a proper requisition and may not exceed the requestor’s
3
purchasing authority. The Buyer is responsible for ensuring there is proper authorization
before completing any purchase.
The Buyer’s first step after receiving a requisition is to determine whether the item
should be competitively bid. Competitive bidding is required for purchases expected to
exceed $50,000, if multiple approved suppliers of the item exist. The Buyers have the
discretion to, and often do, competitively bid purchases under $50,000.
Once the Buyer chooses to competitively bid an item, the ACP requires “the Buyer
[to] determine[] the suppliers from whom to solicit bids, based on commercial, technical,
and/or quality considerations.” 2016 Decision at 5. Generally, the Buyer will begin by
generating a list of potential suppliers from EMPAC, which will include the Original
Equipment Manufacturer and prior suppliers. If the item is safety-related, the Buyer is
required to use suppliers from a specific pre-approved list.
After compiling the list of potential suppliers, the Buyer uses EMPAC to generate
a Request for Quotation (RFQ) and sends the RFQ to potential suppliers. EMPAC allows
the Buyer to populate the RFQ form with standard clauses and information. If a supplier
requests an exception to a safety-related RFQ, the Buyer is required to seek the
procurement engineer’s approval for the exception. Where the exception is not
safety-related, the Buyer will generally seek approval from the requestor, although the
Buyer is not required to do so.
Once the Buyer receives the bids, the Buyer enters the information into EMPAC
so EMPAC can perform a bid analysis. Generally, the Buyer selects the lowest bidder,
but can consider delivery time, cost of freight, and safety concerns. In selecting the
4
winning bid, the Buyer can rely on his or her “background, experience, training,
certifications, and knowledge.” Id. at 6. If the Buyer does not select the lowest bid, the
Buyer must enter the reason into EMPAC.
Regardless of whether the item was competitively bid, if the purchase price
exceeds the original requisition price, but by less than $1,000 per line item, the Buyer has
authority to make the purchase. If the price is more than $1,000 per line item over the
original requisition price, the Buyer must receive authorization from the requestor.
After a supplier is selected, the Buyer uses EMPAC to draft a purchasing order.
EMPAC allows the Buyer to select terms and conditions for the purchasing order and
EMPAC then issues the order. EMPAC warns the Buyer if terms and conditions are
missing from the purchasing order, but the Buyer can choose to issue the purchasing
order anyway. EMPAC also requires the Buyer to confirm the Buyer has funding
approval before creating the purchasing order. By issuing the purchasing order, the Buyer
commits Wolf Creek’s funds for the purchase.
After submitting purchasing orders, the Buyer’s final responsibility is to arrange
shipping. The Buyer may select the freight carrier, but the Buyer is often restricted by
alliance agreements2 with other plants. The Buyer is not responsible for negotiating those
agreements.
2
Wolf Creek enters into alliance agreements with other power plants that specify
preferred suppliers for purchases ranging from freight to gaskets to electrical purchases in
exchange for better rates.
5
B. Procedural History
In 2000, the Regional Director issued a decision in case number 17-UC-210 in
which it granted Wolf Creek’s petition to clarify the existing bargaining unit and to
exclude the Buyers as managerial employees. Decision, Order & Clarification of
Bargaining Unit at 22–23, No. 17-UC-210 (May 4, 2000) [hereinafter 2000 Decision].
The Union did not appeal the 2000 Decision to the Board.
Sixteen years later, in 2016, the Union3 filed a petition with the Board seeking to
represent the Buyers as part of the bargaining unit, thereby initiating case 14-RC-168543.
The Regional Director concluded he was not required to give res judicata effect to the
2000 Decision because “the Board did not make an official or final ruling on the issue.”
2016 Decision at 2–3. Considering the issue anew, the Regional Director found the
Buyers were not managerial employees and could be part of the bargaining unit. He
therefore directed that a secret ballot election be held for the Buyers to decide if they
wanted to be represented by the Union. The Buyers voted to join the Union.
Wolf Creek requested Board review of the Regional Director’s refusal to give res
judicata effect to the 2000 Decision and his conclusion that the Buyers were not
managerial employees. On review, the Board ruled the 2000 Decision was final for
preclusion purposes and would have preclusive effect “unless the party seeking
relitigation of the previously decided issue satisfies its burden of presenting new factual
3
The Union changed from Local 304 in 2000 to Local 225 in 2016. The parties do
not discuss this change, and we therefore presume it has no effect on the res judicata
analysis.
6
circumstances that would vitiate the preclusive effect of the earlier ruling.” Wolf Creek
Nuclear Operating Corp. & Int’l Bhd. of Elec. Workers, Local 225, 365 N.L.R.B. No. 55,
at 1–2 (Apr. 7, 2017) [hereinafter 2017 Remand Order]. The Board remanded the case to
the Regional Director to consider whether there was a sufficient change in circumstances
to warrant revisiting the Buyers’ managerial status.
On remand, the Regional Director reopened the record and concluded there had
been a material change in circumstances sufficient to warrant reconsidering the Buyers’
managerial status. He thus refused to give preclusive effect to the 2000 Decision. The
Regional Director also reaffirmed the 2016 Decision’s conclusion that the Buyers were
not managerial employees.
Wolf Creek again sought Board review, but the Board denied the request because
“[Wolf Creek] raises no substantial issues warranting review.” Order, No. 14-RC-168543
(Oct. 27, 2017) [hereinafter 2017 Denial Order]. In a footnote, however, the Board noted
its agreement with the decision not to give preclusive effect to the 2000 Decision.
In July 2016, the Union filed a charge alleging Wolf Creek had engaged in unfair
labor practices by refusing to bargain with the Union despite the Union’s certification as
the collective bargaining representative for the Buyers. Wolf Creek Nuclear Operating
Corp. & Int’l Bhd. of Elec. Workers, Local 225, 366 N.L.R.B. No. 30, at 1–2 (Mar. 13,
2018) [hereinafter 2018 Decision]. Based on that charge, General Counsel for the NLRB
filed a complaint in November 2017 alleging Wolf Creek was in violation of sections
8(a)(1) and (a)(5) of the Act. The Board concluded Wolf Creek improperly refused to
bargain and granted summary judgment to the General Counsel. Pursuant to 29 U.S.C.
7
§ 160(e), the Board filed an application with this court for enforcement of the 2018
Decision.4
II. DISCUSSION
Wolf Creek opposes the application for enforcement, challenging both the
conclusion that there was a material change in circumstances and the conclusion that the
Buyers are nonmanagerial employees. We begin by discussing three relevant standards:
(1) the general standard of review governing an application for enforcement; (2) the
standard for determining whether an employee falls within the managerial exclusion of
the Act, and; (3) the standard dictating when the Board can revisit a prior final order. We
then address the Regional Director’s finding of a material change in circumstances
permitting reconsideration of the 2000 decision. Concluding that there were material
changes in circumstances, we next discuss the Regional Director’s finding that the
Buyers do not fall within the managerial exclusion.
A. General Standard of Review
“In reviewing an NLRB order, we grant enforcement if we find that the Board
correctly interpreted and applied the law, and if its factual findings are supported by
4
Wolf Creek’s challenge in this case is limited to the determinations made in the
2016 Decision and 2017 Decision. Board certification proceedings normally “are not
directly reviewable in the courts” unless “the dispute concerning the correctness of the
certification eventuates in a finding by the Board that an unfair labor practice has been
committed as, for example, where an employer refuses to bargain with a certified
representative on the ground that the election was held in an inappropriate bargaining
unit.” Boire v. Greyhound Corp., 376 U.S. 473, 476–77 (1964). In reviewing an unfair
labor practice determination, as we do here, the Act provides for full judicial review of
the prior certification decision. Id.
8
substantial evidence in the record as a whole.” NLRB v. Greater Kan. City Roofing, 2
F.3d 1047, 1051 (10th Cir. 1993); see also 29 U.S.C. § 160(e) (mandating the Board’s
factual findings are conclusive if “supported by substantial evidence on the record
considered as a whole”). “As to questions of law, we generally afford the Board's
determinations great weight, and uphold their determinations if within reasonable
bounds.” Greater Kan. City Roofing, 2 F.3d at 1051 (internal quotation marks omitted).
As to factual findings, “[t]he scope of judicial review of an NLRB record on an
enforcement application compels careful consideration of all of the evidence, including
whatever fairly detracts from the Board’s findings and conclusions.” NLRB v. J.D. Indus.
Insulation Co., 615 F.2d 1289, 1292 (10th Cir. 1980). But the substantial evidence test
gives the NLRB “the benefit of the doubt” and “requires not the degree of evidence
which satisfies the court that the requisite fact exists, but merely the degree which could
satisfy a reasonable factfinder.” Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359,
377 (1998). We may not “displace the Board's choice between two fairly conflicting
views, even though [we] would justifiably have made a different choice had the matter
been before [us] de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
We must respect the Board’s findings unless we “cannot conscientiously find that the
evidence supporting that decision is substantial.” Id.
B. Standard for Determining Whether Employees Are Managerial
Managerial employees are not expressly excluded from coverage under the Act.
See NLRB v. Yeshiva Univ., 444 U.S. 672, 682 (1980). But there is a “judicially implied
exclusion for ‘managerial employees’ who are involved in developing and enforcing
9
employer policy.” Id. This exclusion grew out of the concern “[t]hat an employer is
entitled to the undivided loyalty of its representatives.” Id. In recognizing the exclusion,
the Supreme Court noted the Act’s legislative history, which “strongly suggests that there
also were other employees, much higher in the managerial structure, who were . . .
regarded as so clearly outside the Act that no specific exclusionary provision was thought
necessary.” NLRB v. Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 283 (1974).
“[T]he question whether particular employees are ‘managerial’ must be answered
in terms of the employees’ actual job responsibilities, authority, and relationship to
management.” Id. at 290 n.19.
Managerial employees are defined as those who “formulate and effectuate
management policies by expressing and making operative the decisions of
the employer.” These employees are “much higher in the managerial
structure” than those explicitly mentioned by Congress, which “regarded
[them] as so clearly outside the Act that no specific exclusionary provision
was thought necessary.” Managerial employees must exercise discretion
within, or even independently of, established employer policy and must be
aligned with management. Although the Board has established no firm
criteria for determining when an employee is so aligned, normally an
employee may be excluded as managerial only if he represents management
interests by taking or recommending discretionary actions that effectively
control or implement employer policy.
Yeshiva Univ., 444 U.S. at 682–83 (alteration in original) (citations omitted) (quoting Bell
Aerospace, 416 U.S. at 288, 283, 286–87). Managerial employees include “‘those who
formulate, determine, and effectuate an employer’s policies,’ and those who have
discretion in performance of their jobs, but not if th[at] discretion must conform to an
employer’s established policy.” Bell Aerospace, 416 U.S. at 288 n.16 (citation omitted)
(quoting Retail Clerks Int’l Ass’n v. NLRB, 366 F.2d 642, 645 (D.C. Cir. 1966)).
10
C. Standard for Determining Whether the Board Can Reconsider a Prior Ruling
The Board “has chosen to promulgate virtually all the legal rules in its field
through adjudication rather than rulemaking.” Allentown Mack Sales & Service, 522 U.S.
at 374. And its adjudication is subject to the same requirement of reasoned
decisionmaking as applies to rulemaking. Id. Therefore, the Board “must be required to
apply in fact the clearly understood legal standards that it enunciates in principle.” Id. at
376.
The Board “explicitly held that Board decisions and rulings in representation cases
have preclusive effect in subsequent representation cases.” 2017 Remand Order at 1. The
party seeking relitigation of the issue (here, the Union) has the “burden of presenting new
factual circumstances that would vitiate the preclusive effect of the earlier ruling.” Id. at
2. This burden is not, however, “an onerous one,” as it merely requires pointing to “one
material differentiating fact.” Id. at 3 n. 7 (quoting Miller’s Ale House, Inc. v. Boynton
Carolina Ale House, LLC, 702 F.3d 1312, 1319 (11th Cir. 2012)). To overcome the
preclusive effect of a prior decision, “circumstances [must] have changed in a way that
would materially alter the analysis of the [B]uyers’ managerial status.” Id. at 3. So, it is
necessary to “examine any factual changes in context and in light of the relevant statutory
question.” Id. We undertake that analysis now.
D. Material Change in Circumstances
The Regional Director concluded there were three material changes in
circumstances that warranted overcoming res judicata and relitigating the Buyers’
managerial status. We begin by discussing Wolf Creek’s specific challenges to each of
11
the changes in circumstances. We then address whether those changes overcome the res
judicata effect of the 2000 Decision.
Substantial Evidence Supporting Changes
The three material changes found by the Regional Director to warrant relitigation
of the Buyers’ managerial status are that: (1) changes to EMPAC altered the Buyers’ role
in the procurement process, (2) Wolf Creek reduced the frequency of competitive
bidding, and (3) the Buyers are less involved in evaluating responses to RFQs. Wolf
Creek challenges each of these material changes. In this section, we first consider Wolf
Creek’s challenges to each change individually, including specifically whether there is
substantial evidence to conclude the change exists. In the following section, we discuss
whether these changes were material and warranted relitigating the Buyers’ managerial
status.
a. Updates to EMPAC
The first material change in circumstances identified by the Regional Director was
the technological upgrades to EMPAC. The Regional Director recognized that “standing
alone, technological changes are insufficient to establish material changes to a job
classification.” 2017 Decision at 6. But the Regional Director focused on how EMPAC’s
evolution allows Wolf Creek to “integrate its procurement procedures and its
procurement software, and thus, regulate and restrict the [B]uyers’ discretionary actions.”
Id. The Regional Director noted, “information that was once available only in the mind of
a seasoned buyer or maintained in hardcopy” is now readily accessible to the Buyers and
other employees. Id. at 7. And EMPAC now has pop-up warnings with procurement
12
policies and assists the Buyers “in including necessary clauses in an RFQ or purchase
order.” Id. The Regional Director also found that EMPAC performs some functions for
which the Buyers were previously responsible, such as analyzing and calculating bids and
shipping terms. As a result of these changes, the Regional Director found the Buyers’
“role as one of the final gatekeepers in the procurement process has been diminished.” Id.
The Regional Director concluded that “changes to the EMPAC system, largely a result of
technical innovation, have fundamentally limited the [B]uyers’ discretion” and constitute
a material change in circumstances. Id. at 6.
Wolf Creek does not argue the record lacks substantial evidence to support the
Regional Director’s findings regarding changes to EMPAC; Wolf Creek effectively
acknowledges those changes exist. Instead, Wolf Creek asserts the Regional Director’s
determination is erroneous because “the Board has long held that advances in technology
are generally insufficient to warrant a change in managerial status.” Wolf Creek’s Br. at
24. And Wolf Creek contends the Regional Director failed to consider these changes
against the criteria for evaluating managerial status—“the underlying nature of the job
and the independent discretion maintained in the position.” Id. Under that criteria, Wolf
Creek contends that “[t]he source of information is irrelevant,” id., and the rules built into
EMPAC “have always been in place and the Buyers have always been responsible for
following them,” id. at 25–26.
At least one of the Board members agreed with Wolf Creek’s position. In denying
review of the 2017 Decision, one Board member noted he did not find the changes in
EMPAC material because they “merely automated certain functions and reminded Buyers
13
of preexisting boundaries of their discretionary authority without actually further
diminishing that authority.” 2017 Denial Order at n.1.
Because the Regional Director found two additional material changes in
circumstances, we need not address whether the changes to EMPAC, standing alone,
could provide substantial evidence of a material change in circumstances. Indeed, we
need not consider the EMPAC changes in our analysis at all because, as we now discuss,
substantial evidence supports the other material changes found by the Regional Director,
and those changes warrant relitigation of the Buyers’ managerial status.
b. Reduction in competitive bidding
Separate from the changes to EMPAC, the Regional Director found a material
change in circumstances in the decreased use of competitive bids and, correspondingly,
the Buyers’ discretion. While the Regional Director recognized competitive bidding is
still part of the Buyers’ duties, he emphasized the decline in that practice based on Wolf
Creek’s increased use of single-source suppliers.
According to Wolf Creek, the Buyers are still responsible for deciding whether to
competitively bid an item and for the competitive bidding process. Wolf Creek also notes
that some items, such as safety-related items, have never been appropriate for competitive
bidding. But Wolf Creek concedes that “the number of purchases subject to competitive
bidding has declined.” Wolf Creek’s Br. at 27. And there is substantial evidence in the
record to support the Regional Director’s finding of a significant decrease in competitive
bidding.
14
While the record does not indicate the percentage of procurements previously
subjected to competitive bidding, in 2000 the Regional Director noted there were only
“limited situations” where items over $5,000 were not competitively bid. 2000 Decision
at 20. By 2017, only about 10% of all purchase orders were competitively bid. A Buyer
who began in 1997 testified that the amount of competitive bidding has progressively
declined.
Testimony also indicates that multiple factors impacted this decline. First, Wolf
Creek’s plant is now more than thirty years old and often only a single company still sells
the specific equipment needed. Second, with respect to safety-related items, the Buyers
can seek bids only from approved suppliers, and there is often just a single approved
supplier for the item.5 Finally, Wolf Creek has negotiated several alliance agreements that
encourage purchasing items from a designated supplier.
In short, there is substantial evidence in the record supporting the Regional
Director’s conclusion that there was a significant decrease in competitive bidding after
the 2000 Decision.
c. Reduced involvement in RFQ process
Finally, the Regional Director found that the Buyers are less involved in
evaluating responses to RFQs and in selecting the ultimate supplier than in 2000. Except
for routine or low-cost purchases, the Buyers now “customarily consult with the
5
In 2000, the Buyers were also limited to approved suppliers for safety-related
items. But there is no indication in the 2000 Decision that safety-related items often had
only one approved supplier.
15
requisitioning department, the procurement engineering department, or a manager to
identify a preferred supplier.” 2017 Decision at 8.
To challenge this finding, Wolf Creek argues the Buyers are still involved in
evaluating responses to RFQs and in making the ultimate decision to award a purchase to
a supplier. Wolf Creek also contends that while the Buyers do frequently consult with
others, this process has not changed since 2000. In support, Wolf Creek cites to the
testimony of a Buyer who admits that purchasing safety-related items has always been
governed by special procedures. Nothing in the cited testimony, however, discusses
evaluating responses to RFQs or consulting with other departments during that process.
We have not located, and Wolf Creek has failed to point us to, any evidence that
the Buyers in 2000 routinely consulted with other departments when selecting a winning
bid outside of the safety-related context. In 2000, the Regional Director found the Buyers
“perform[ed] a commercial evaluation to determine the most beneficial bid based on
price, delivery, performance schedule, payment terms, warranties, exceptions, etc.” 2000
Decision at 21. At that time, the Buyers used a bid evaluation template to list the
pertinent attributes side-by-side and selected the best option. The Buyers then selected
the winning bidder without seeking prior approval, even for safety-related items. Notably
absent from the Regional Director’s 2000 ruling is any mention of the Buyers consulting
with anyone before making the decision.
Conversely, there is significant testimony from the Buyers in the 2016 and 2017
proceedings establishing that they now routinely consult with others when evaluating
bids. For example, there are many purchases that require the Buyers to check with system
16
engineering to ensure the response to the RFQ will meet its needs. Other times, the Buyer
will confer with the requestor about the bids and the necessary timelines. In response to
the general question, “when you do competitive bidding, it is up to the Buyer to make the
decision who won the bid, right?” a Buyer responded, “Well, I -- I’d say we consult the
requestor.” Tr. at 329.
Another Buyer testified regarding when the Buyers will select the winning bid
without input from others. That Buyer explained there are certain technical purchases that
require the requesting department to review the bids and assess the technical
requirements, the quality, the price, and the timeframe to determine which bid to accept.
But there are certain routine or low-cost purchases where the Buyer will simply choose
the lowest bid or a slightly higher bid that ships faster. Frequently, even those decisions
are run through the Buyer’s superior. And the Buyer will often go back to the requestor
before making those decisions.
Admittedly, there is some contradictory testimony. A recently retired Buyer
testified about performing commercial bid evaluations as a necessary part of the process.
Although approval is needed to add a supplier for safety-related items, the Buyer would
send out RFQs to unapproved suppliers and, if the response was favorable after a
commercial evaluation, the Buyer would seek approval to add the supplier to the
approved list. The Buyer also testified that the general process for evaluating responses to
RFQs was substantially the same as when she started in the late 1980s.
Despite this contradictory testimony, there was ample evidence from which the
Regional Director could conclude that, although not mandated by the procedures, the
17
Buyers would typically consult with superiors in the procurement department or with the
requestor when awarding the bid—except for routine or low-cost purchases. We may not
“displace the Board’s choice between two fairly conflicting views.” Universal Camera,
340 U.S. at 488. Thus, there is substantial evidence supporting the Regional Director’s
finding of a change in circumstance based on the Buyers’ diminished role in evaluating
RFQs.
Materiality of the Changes in Circumstance
Excluding the changes to EMPAC, we are left with the Regional Director’s
findings that the reduction in competitive bidding and the minimized involvement in
selecting suppliers in response to RFQs were each material changes in circumstances that
warranted relitigating the Buyers’ managerial status. We consider each of these changes
below, concluding the Regional Director’s determination that they justified
reconsideration of the Buyers’ managerial status is supported. In reaching that
conclusion, we first frame the inquiry in terms of the statutory question. We next review
the 2000 Decision to assess the basis of the Regional Director’s finding that the Buyers
were acting as managerial employees. Then we consider each change in circumstances to
determine whether the change would alter that analysis.6
6
Although the parties do not directly address the standard of review applicable to
the materiality of a change, Wolf Creek treats the substantial evidence question as distinct
from the issue of whether any such change is material. See Wolf Creek’s Br. at 23
(“While some of these alleged changes were not supported by evidence in the record,
even if they were, they relate to changes in the manner in which Buyers perform their job
duties, not to changes in the duties themselves or to the underlying nature of the Buyer
positions. Changes in the manner of performing a job do not warrant reclassification if
18
a. The statutory question and 2000 Decision
Whether a material change in circumstances exists must be considered “in light of
the relevant statutory question.” 2017 Remand Order at 3. The statutory question in this
case is: Are the Buyers covered by the Act? So, the change is material if it “would
materially alter the analysis of the [B]uyers’ managerial status.” Id. That analysis, in turn,
involves evaluating “the employees’ actual job responsibilities, authority, and
relationship to management,” Bell Aerospace, 416 U.S. at 290 n.19, to determine whether
the employees “exercise discretion within, or even independently of, established
employer policy and . . . [are] aligned with management,” Yeshiva Univ., 444 U.S. at 683.
In 2000, the Regional Director applied this analytical framework in concluding the
Buyers were managerial employees. Specifically, the Regional Director noted “[t]he
Buyers exercise independent discretion when they locate vendors without reliance upon
pre-approved lists” and “select a vendor without supervisory approval.” 2000 Decision at
23. But between 2000 and 2017, there was a material reduction in both the quantity and
quality of the Buyers’ exercise of that discretion. See 2017 Decision at 9 (“Buyers now
the underlying duties remain the same.” (emphasis added)). Implicitly, Wolf Creek briefs
the issue as a mixed question of law and fact.
We need not decide whether the materiality of a change in circumstance is a
question of fact, a mixed question, or a question of law because Wolf Creek’s arguments
fail under even the least deferential of these standardsthat applicable to a question of
law. Therefore, we will assume, without deciding, that we review the materiality of a
change in circumstances to determine whether “the Board correctly interpreted and
applied the law,” affording its legal “determinations great weight, and uphold[ing] their
determinations if within reasonable bounds.” NLRB v. Greater Kan. City Roofing, 2 F.3d
1047, 1051 (10th Cir. 1993) (internal quotation marks omitted).
19
only infrequently locate and select venders without first consulting a manager or
members of the department responsible for a requisition. And, although in some
circumstances [the B]uyers continue to make vendor decisions on routine and cheap
purchases, they do so guided by [Wolf Creek’s] detailed procedures and nearly always
select either the lowest bidder or the supplier who can provide the materials within the
requisitioning departments timeline.”).
b. The decrease in competitive bidding
The decrease in competitive bidding corresponds to a decrease in the frequency
with which the Buyers locate and select vendors without preapproval. Alliance
agreements that specify a single supplier decrease the Buyers’ discretion to locate
vendors without reliance on pre-approved lists or to select a vendor without supervisory
approval. And the age of the power plant often results in only one available supplier.
There is no discretion involved when the Buyers award the contract to the vendor
approved through an alliance agreement or the sole vendor from which the products are
available. This change in circumstances relates to the Buyers’ “actual job responsibilities,
authority, and relationship to management,” Bell Aerospace, 416 U.S. at 290 n.19, and to
whether they “exercise discretion within, or even independently of, established employer
policy and . . . [are] aligned with management,” Yeshiva Univ., 444 U.S. at 683.
Accordingly, the decrease in competitive bidding would alter the analysis of the statutory
question and is a material change.
Wolf Creek argues, however, that the admitted decrease in competitive bidding
makes the Buyers more important—and able to exercise more discretion—because when
20
there is no competitive bidding they must ensure a fair price from the single source. But
the question for purposes of revisiting the 2000 Decision is simply whether there has
been a material change in circumstances that would alter the analysis, not whether the
conclusion based on that analysis would change. Once a material change has been
established, the impact of the change on the scope of the Buyers’ discretion is relevant to
the merits question concerning their status as managerial employees. The change in
circumstance does not automatically result in a different outcome—it simply warrants a
new look at the previous conclusion.7 Here, the Regional Director’s finding that the
decrease in competitive bidding is a material change in circumstances is within
reasonable bounds. And because the showing necessary to relitigate the Buyers’
managerial status can be met by pointing to “one material differentiating fact,” the Union
7
Wolf Creek also finds fault in the Regional Director’s determination that, based
on the material change in circumstances discussed above, “there are material differences
between the [B]uyers’ current job responsibilities and those they had in 2000.” 2017
Decision at 8. The Regional Director continued: “Even though the [B]uyers remain
responsible for preparing and issuing purchase orders as they did in 2000, there has been
a sufficient material change in the manner in which they perform those duties to warrant
reconsideration of their managerial status.” Id.
To challenge this determination, Wolf Creek cites Goods N’ Fresh Foods, Inc.,
287 N.L.R.B. 1231 (1988), for the proposition that “changes to the manner in which
employees perform their job do not generally warrant reclassification.” Wolf Creek’s Br.
at 28. Wolf Creek’s reliance on Goods N’ Fresh Foods is misplaced. There, the court
considered whether a successor employer inherits the bargaining obligations of the
predecessor employer. Goods N’ Fresh Foods, 287 N.L.R.B. at 1234–35. Nothing in the
decision stands for the proposition that the NLRB cannot reconsider managerial status
where employees go from performing a task in a manner that gives them wide discretion
to performing that task in a manner that gives them little to no discretion.
21
has met its burden. 2017 Remand Order at 3 n.7 (noting that the burden is not “an
onerous one”).
c. The Buyers’ diminished role in evaluating RFQs
The Buyers’ diminished role in evaluating responses to RFQs also reflects a
material decrease in the quantity and quality of the Buyers’ exercise of discretion. In all
but “routine or [low]-cost purchases,” the Buyers now “customarily consult with the
requisitioning department, the procurement engineering department, or a manager to
identify a preferred supplier, rather than independently selecting the supplier.” 2017
Decision at 8. When making those decisions, the Buyers are “guided by [Wolf Creek’s]
detailed procedures and nearly always select either the lowest bidder or the supplier who
can provide the materials within the requisitioning department’s timeline.” Id. at 9. This
shows not only a decrease in the frequency with which the Buyers exercise discretion in
selecting vendors, but also implicates the quality of the discretion—if any—that is
exercised when selecting vendors for routine or low-cost purchases.
As with the decrease in competitive bidding, the diminished role in evaluating
RFQs implicates the Regional Director’s reliance on “[t]he Buyers exercise [of]
independent discretion when they locate vendors without reliance upon pre-approved
lists” and “select a vendor without supervisory approval.” 2000 Decision at 23. Thus,
these changes in circumstances “would materially alter the analysis of the [B]uyers’
managerial status” and are “sufficient to allow reconsideration” of that status. 2017
Remand Order at 3.
* * *
22
Whether considered separately or in tandem, the changes in circumstances
authorized reconsideration of the Act’s application to the Buyers. The decrease in
competitive bidding, which Wolf Creek acknowledges occurred, is “one material
differentiating fact,” and the Buyers’ diminished role in evaluating RFQs is another.
Together, these changes in circumstances clearly freed the Regional Director from the
preclusive effect of the 2000 decision.
In summary, the Regional Director’s factual findings as to a material change in
circumstances were “supported by substantial evidence in the record as a whole” and the
legal determinations are “within reasonable bounds.” Greater Kan. City Roofing, 2 F.3d
at 1051. We therefore proceed to consider the Regional Director’s determination that the
Buyers are not managerial employees.
E. Managerial Status
As the Board recognized, the question at issue here is “whether the [B]uyers meet
the legal definition of managerial employees”— an “ultimate fact” that must be
determined by applying “governing law to a set of evidentiary facts.” 2017 Remand
Order at 3. So, we begin our analysis by setting out the standard of review applicable to a
managerial status determination. We follow with a description of the Regional Director’s
decision and rationale. Next, we address Wolf Creek’s specific challenges to the Regional
Director’s underlying factual determinations. Finally, we consider the Regional
Director’s ultimate finding that the Buyers were not managerial employees.
23
Standard of Review
The scope and applicability of the managerial employee exclusion presents a
mixed question of law and fact. See Yeshiva Univ., 444 U.S. at 691. When applying the
proper legal standard, however, the managerial status inquiry rests on a factual analysis
of “the employees’ actual job responsibilities, authority, and relationship to
management.” See Bell Aerospace, 416 U.S. at 290 & n.19; see also 2017 Remand Order
at 3 (stating question at issue “is an ultimate fact, gleaned by application of governing
law to a set of evidentiary facts: whether the [B]uyers meet the legal definition of
managerial employees”).
The “difficult problems” intrinsic in determining whether an individual is an
“employee” under the Act “are precisely ‘of a kind most wisely entrusted initially to the
agency charged with the day-to-day administration of the Act as a whole.’” Local No.
207, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers Union v. Perko, 373
U.S. 701, 706 (1963) (quoting Marine Eng’rs Beneficial Ass’n v. Interlake Steamship
Co., 370 U.S. 173, 180 (1962)). As a result, “[i]n construing the scope of the Act’s
coverage, we must accord great respect for the expertise of the Board ‘when its
conclusions are rationally based on articulated facts and consistent with the Act.’”
Loretto Heights Coll. v. NLRB, 742 F.2d 1245, 1255 (10th Cir. 1984) (quoting Yeshiva
Univ., 444 U.S. at 691). However, “administrators and reviewing courts must take care to
assure that exemptions from [the Act’s] coverage are not so expansively interpreted as to
deny protection to workers the Act was designed to reach.” Holly Farms Corp. v. NLRB,
517 U.S. 392, 399 (1996).
24
The party asserting the managerial employee exclusion bears the burden of
proving it applies. Cf. NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 710–11 (2001)
(reaching same conclusion for supervisory employees). Thus, the inquiry here is whether
the Regional Director’s determination that Wolf Creek did not meet its burden of proving
the Buyers are managerial employees is supported by substantial evidence.
Regional Director’s Decision
In 2016, the Regional Director concluded “the Buyers do have some discretion,
but their purchasing decisions are dictated by [Wolf Creek’s] policies and procedures.”
2016 Decision at 9. In finding an absence of discretion, the Regional Director focused on
three factual determinations. First, the Regional Director found, “[t]he Buyers rely
heavily on past practice to determine which suppliers they should offer RFQ[]s and, if
they deviate from past practice, Buyers must provide a justification for such a departure.”
2016 Decision at 10. Thus, while the Buyers exercise discretion when selecting the
supplier, such discretion “takes place within the confines of Employer policy.” Id.
Second, the Regional Director focused on the Buyers’ lack of discretion in
competitively bidding and issuing purchase orders. Although the “Buyers are not required
to competitively bid pre-approved requisitions” under $50,000, they must work within
Wolf Creek’s policies and procedures when making those purchases. Id. Therefore, the
“requisition process effectively sets the limits of Buyer discretion.” Id. And the Buyers
are required to receive additional approval from the requestor if purchases will exceed the
approved requisition price by $1,000 per line item. Thus, “the Buyers can exercise this
discretion, but only within [Wolf Creek’s] pre-established limits.” Id.
25
Third, the Regional Director considered arguments regarding the amount of
money the Buyers commit and save each year. Although the Buyers committed around
$21 million of Wolf Creek’s funds and saved Wolf Creek over $300,000, the Regional
Director found the Buyers did so while “acting within the scope of the official purchasing
policies and procedures.” Id. at 11.8
In the 2017 Decision, the Regional Director reaffirmed the prior conclusion that
the Buyers were not managerial employees:
I find that the [B]uyers’ authority has been circumscribed by [Wolf
Creek’s] evolving practices and requisition and procurement policies,
which have been integrated into the EMPAC software to an extent that
eliminates much of the [B]uyers’ independent discretion. [The] Buyers now
only infrequently locate and select venders without first consulting a
8
In the 2016 Decision, the Regional Director engaged in a separate analysis for
whether the Buyers engaged in significant discretion and whether their interests aligned
with management. The Regional Director concluded the Buyers were not aligned with
management because (1) the Buyers are allowed to purchase an item only after a manager
or supervisor with purchasing authority has requisitioned the item, (2) the Buyers did not
attend any high level management meetings, and (3) the Buyers did not have input into
the changes made to purchasing policies.
Some NLRB cases have considered discretion and alignment of interest to be part
of the same analysis. See, e.g., Lockheed-California Co., 217 N.L.R.B. 573, 575 (1975)
(concluding the buyers “do not exercise sufficient independent discretion in their jobs to
truly align them with management”). But other decisions have separately considered
whether an employee “is ‘so closely aligned with management as to place the employee
in a position of potential conflict in interest between his employer and his fellow
workers.’” Iowa S. Utils. Co., 207 N.L.R.B. 341, 345 (1973) (quoting Ill. State Journal-
Register, Inc. v. NLRB, 412 F.2d 37, 41 (7th Cir. 1969)).
Wolf Creek’s only argument regarding alignment of interests appears on the final
page of its brief, where it cites Concepts & Designs, Inc., 318 N.L.R.B. 948 (1995), enf’d
101 F.3d 1243 (8th Cir. 1996), and contends the Union failed to come close to satisfying
its burden on that issue. Wolf Creek’s argument, however, is not based on a potential
conflict of interest between Wolf Creek and the Buyers’ fellow workers. As Wolf Creek
bears the burden of proving the Buyers are managerial employees and, as discussed in
footnote 7 below, Concepts & Designs is not a binding case, we do not consider
alignment with management as a separate issue.
26
manager or members of the department responsible for a requisition. And,
although in some circumstances [the B]uyers continue to make vendor
decisions on routine and cheap purchases, they do so guided by [Wolf
Creek’s] detailed procedures and nearly always select either the lowest
bidder or the supplier who can provide the materials within the
requisitioning department’s timeline. [The] Buyers no longer perform
technical bid evaluations, add new suppliers without authorization,
independently decide which suppliers to utilize for engineered or safety-
related materials, or negotiate prices for goods and services. Moreover, [the
B]uyers are now more frequently limited to obtaining materials from a
single source, either because they are constrained by [Wolf Creek’s]
association agreements, or because the choice of supplier is dictated by
[Wolf Creek’s] engineering requirements.
. . . . [The B]uyers have little if any independent purchasing authority, and
they often rely on others within [Wolf Creek’s] organization to determine
which supplier to use. Although [the B]uyers still act as [Wolf Creek’s]
agent[s] to commit [Wolf Creek’s] funds by issuing purchase orders, they
neither make the ultimate decision to acquire materials or approve the
acquisition of materials.
2017 Decision at 9–10 (citation omitted). Based on these findings, the Regional Director
reached his ultimate conclusion: The “Buyers operate within the confines of detailed
policies, and they do not exercise the type of discretion indicative of managerial status”
and are therefore “entitled to the protection of the Act.” Id. at 10.
Specific Substantial Evidence Challenges
Wolf Creek challenges four of the Regional Director’s underlying factual findings,
or it makes assertions that are directly contrary to those findings. Before addressing the
Regional Director’s ultimate factual conclusion—the Buyers were nonmanagerial
employees—we address Wolf Creek’s challenges to the underlying facts found by the
Regional Director.
27
To begin, Wolf Creek mounts two challenges to the Regional Director’s
determination that the Buyers “neither make the ultimate decision to acquire materials
[n]or approve the acquisition of materials.” 2017 Decision at 10. First, Wolf Creek
alleges that for the last eighteen years the Buyers have “made the ultimate decision
concerning the acquisition of materials.” Wolf Creek’s Br. at 51. Second, it argues that
the “Buyers remain responsible for committing funds in the company’s best interest.” Id.
at 54. We reject both arguments because the Regional Director’s finding refers to
decisions made by others that limit the Buyers’ involvement. The Buyers initiate
purchases only in response to requisitions filed by someone else. The requisitions reflect
(1) the decision to acquire materials, (2) the supervisory approval of such acquisition, and
(3) the price ceiling for the purchase. Thus, there is substantial evidence in the record to
support a finding that the Buyers are not responsible for these decisions.
The Regional Director also determined the “[B]uyers have little if any independent
purchasing authority, and they often rely on others within [Wolf Creek’s] organization to
determine which suppliers to use.” 2017 Decision at 10. Wolf Creek attacks this finding
by arguing the Buyers issue purchase orders, issue RFQs, and use their independent
judgment to select suppliers. As discussed at length above, however, there is substantial
evidence in the record to support the Regional Director’s finding that the Buyers
routinely consult with others in the company to select a supplier from competitive bids.
See supra Part I.C.2.c. And it is undisputed that the Buyers’ purchasing authority exists
only when a requisition has been submitted by a supervisor with the appropriate level of
28
authority, and that the requestor’s authority sets the ceiling of the Buyers’ authority.
Substantial evidence, therefore, supports the Regional Director’s finding.
Next, Wolf Creek asserts the Buyers were involved in the decision to increase the
minimum requirement for competitive bidding from $5,000 to $50,000. Contrary to Wolf
Creek’s assertion, however, the Regional Director concluded the Buyers were not
consulted about this decision. Wolf Creek does not contend the Regional Director’s
finding presents a substantial evidence problem, but rather simply ignores the finding and
points to evidence in the record that could support a contrary finding. It is true the
testimony is inconsistent on this point, but we cannot “displace the Board’s choice
between two fairly conflicting views,” Universal Camera, 340 U.S. at 488. Despite the
conflicting testimony, there is substantial evidence for the Regional Director’s finding.
Finally, Wolf Creek claims “the Buyers negotiate the final purchase price for
goods and services.” Wolf Creek Br. at 55. Again, Wolf Creek does not assert this as a
substantial evidence challenge but instead, advances it despite the Regional Director’s
contrary finding that the Buyers do not “negotiate prices for goods and services.” 2017
Decision at 9. To be sure, there was conflicting evidence on this point. One Buyer
testified that the Buyers “try to save the company money” by “negotiating with the
suppliers.” Tr. at 161. But when a different Buyer was asked whether the Buyers
negotiate prices with suppliers, the Buyer responded, “No, not really. We just basically
go out and get different bids to get a better price. We don’t go back and say, how about
X-amount instead of this, or whatever. That doesn’t really happen.” Id. at 167. The
Buyers’ supervisor corroborated that point of view when he testified that negotiation in
29
the competitive bidding process is “minimal.” Id. at 206. The supervisor also testified that
Buyers have “negotiated savings” in two circumstances. Id. at 207. The first is when the
Buyer achieves “cost avoidances” by, for example, finding a better deal on freight
charges. Id. The second is “when you have your single sole sources. When you find other
opportunities based on the bid that you’[v]e got that you can get favorable pricing from
an individual through negotiations with them.” Id.
It is unclear from the context of the supervisor’s testimony exactly when or how
the Buyers will negotiate with single source suppliers. It is, however, apparent from the
record that the Buyers do not negotiate the alliance agreements that select the single
source suppliers. Nor do the Buyers independently reevaluate the pricing in those
agreements to determine whether the goods or services could be procured at lower prices.
Although Wolf Creek can point to some evidence supporting its claim that the
Buyers exercise discretion in negotiating the purchase price for goods and services, the
Regional Director was not required to credit that evidence over the substantial contrary
evidence. And because Wolf Creek bears the burden of proving the Buyers fall within the
managerial employee exclusion, cf. Ky. River Cmty. Care, 532 U.S. at 711, it follows that
Wolf Creek also bears the burden of placing evidence in the record to prove the Buyers
were exercising discretion by negotiating the purchase price for goods and services. The
Regional Director’s finding that Wolf Creek failed to introduce sufficient evidence to
30
prove the Buyers were negotiating the purchase prices of goods and services is supported
by substantial evidence in the record as a whole.9
Buyers’ Managerial Status
In challenging the Regional Director’s ultimate finding, Wolf Creek proceeds
almost exclusively by comparing the facts here to those in previous Board decisions on
the managerial status of employees with purchasing authority. The Board treats prior
published opinions as binding precedent when the factual differences are “of no
substantive importance.” El Conquistador Hotel, Inc., 186 N.L.R.B. 123, 126 (1970); see
also In re Sw. Reg’l Council of Carpenters, 354 N.L.R.B. 930, 932 n.3 (2009)
(recognizing that when a prior Board decision reached a conclusion on “facts very similar
to those presented in this case,” it “is controlling precedent for resolving this case”).10 As
9
In asserting that the Buyers do negotiate the purchase prices, Wolf Creek also
cites to transcript pages 326–27 and Wolf Creek’s Procurement Policy section 6.2.
Neither citation supports this proposition. The transcript citation discusses alliance
agreements, which the Buyers are not responsible for negotiating. And Wolf Creek’s
Procurement Policy section 6.2 says nothing about Buyers negotiating prices.
10
Notably, two cases are heavily discussed by the parties that are not binding
precedent of the Board and are therefore absent from our analysis. The first is Concepts
& Designs, 318 N.L.R.B. 948. Wolf Creek devotes five pages of its brief arguing the
Regional Director’s managerial status decision should be rejected because Concepts &
Designs “is controlling and the Regional Director failed to correctly apply it to the facts
in this matter.” Wolf Creek’s Br. at 44. In denying review of the 2017 Decision, the
Board explained that Wolf Creek’s reliance on Concepts & Designs was inappropriate
because “the Board did not pass on the issue of managerial status” in that case. 2017
Denial Order at n.1. The employer in Concepts & Designs had prevailed on the
managerial status issue before the Administrative Law Judge, and the employer was the
only party to file exceptions to that decision. 318 N.L.R.B. at 948, 956–57. It is “the
Board’s settled practice” to limit review of a judge’s decision to the issues raised by
exceptions, even where the Board “do[es] not necessarily agree with the judge’s
discussion” of other issues. FES & Plumbers & Pipefitters Local 520 of United Ass’n,
31
a result, we begin by addressing whether prior Board decisions mandate the conclusion
that the Buyers are managerial employees. We then discuss the substantial evidence in
the record supporting the Regional Director’s finding that the Buyers are not managerial
employees.
a. Prior Board decisions
When concluding the Buyers were nonmanagerial employees, the Regional
Director relied on two of the Board’s prior decisions, Washington Post Co., 254 N.L.R.B.
168 (1981), and Lockheed-California Co., 217 N.L.R.B. 573 (1975). Wolf Creek takes
three general exceptions to the Regional Director’s reliance on those decisions in its
analysis. First, Wolf Creek argues the Regional Director failed to properly apply other
cases where an employee with discretionary purchasing power was considered a
managerial employee. Second, Wolf Creek claims Washington Post is inapposite and
cannot support a finding that the Buyers were managerial employees. Finally, Wolf Creek
contends the Regional Director was incorrect in concluding that “in nearly all aspects, the
333 N.L.R.B. 66, 66 n.1 (2001). Because the Board did not consider the managerial status
of the employees in Concepts & Designs, the case is not binding on the managerial status
issue.
Second, Wolf Creek attempts to distinguish Solartec, Inc., 352 N.L.R.B. 331
(2008), enf’d at NLRB v. Solartec, Inc., 310 F. App’x 829 (6th Cir. 2009), which was
cited in the 2016 Decision. In the 2017 Denial order, however, the Board emphasized it
was not relying on the Regional Director’s citation to Solartec in deciding to deny review
because it was a two-member decision, and the Supreme Court recently held the Board
cannot act as a two-member panel. New Process Steel, L.P. v. NLRB, 560 U.S. 674, 679
(2010). Therefore, Solartec is also not binding precedent.
32
[B]uyers’ responsibilities appear to mirror the responsibilities of the non[]managerial
buyers in Lockheed.” 2017 Decision at 10. We address each of these arguments in turn.
i. Purchasing authority
Wolf Creek makes much of the fact that the Buyers committed $21 million of
Wolf Creek’s funds in one year and can submit purchase orders for up to $250,000
without additional prior approval. Wolf Creek argues these levels are on par with or
exceed levels held by buyers deemed managerial employees in other Board decisions.
Wolf Creek’s Br. at 55; Wolf Creek’s Reply Br. at 13–14; see also Salinas Newspapers,
Inc., 279 N.L.R.B. 1007, 1008, 1010 (1986) (managerial employee extended over $1
million in credit each year); Simplex Indus., Inc., 243 N.L.R.B. 111, 112 (1979)
(managerial employee individually committed $5.75 million); Fed. Tel. & Radio Co., 120
N.L.R.B. 1652, 1653–54 (1958) (managerial employee could commit $2,500 without
approval); Nat’l Cylinder Gas Co., 115 N.L.R.B. 726, 729 (1956) (managerial employee
could commit up to $2,000); Mack Trucks, Inc., 116 N.L.R.B. 1576, 1578 (1956)
(managerial employees each committed between $800,000 and $6 million per year); Am.
Locomotive Co., 92 N.L.R.B. 115, 116 (1950) (managerial employees collectively
committed $6 million). But see Lockheed, 217 N.L.R.B. at 574–75 & 575 n.10
(nonmanagerial employees could commit $50,000 without additional approval and
purchased a combined $770 million in one year); Wash. Post, 254 N.L.R.B. at 189
(nonmanagerial employee committed up to $50,000 in purchases each month).
The problem with Wolf Creek’s argument is that the employees in the comparison
cases appear to have either independent authority to make purchases or have no spending
33
cap on filling requisitions, and the cases reveal no policies cabining the employees’
discretion in procurements. See Salinas Newspapers, 279 N.L.R.B. at 1008 (discussing
employee’s almost unfettered discretion); Simplex Indus., 243 N.L.R.B. at 112
(recognizing there were no procurement policies in place and the buyer was able to
“issue[] and execute[] the purchase orders without any approval or review of his
actions”); Fed. Tel. & Radio Co., 120 N.L.R.B. at 1653–54 (providing a cap but no limit
on discretion to purchase items); Nat’l Cylinder Gas Co., 115 N.L.R.B. at 729
(recognizing employee’s discretion in filling requisitions); Mack Trucks, 116 N.L.R.B. at
1578 (failing to discuss any limits on purchase price or applicable procurement policies);
Am. Locomotive, 92 N.L.R.B. at 116 (providing no discussion on limits to individual
purchases or discretion). Conversely, Wolf Creek’s Buyers do not have the ability to
requisition an item without oversight. For all practical purposes, the Buyers did not
commit $21 million of Wolf Creek’s funds each year. That amount was committed by the
requestors, who dictate what purchase should be made and set the limits on the purchase
price. While it is true the Buyers do not need additional authority for purchases up to
$250,000, this is the case only if the requisition provided a purchase price of $250,000
and the requestor who submitted it had authority to approve a purchase at that price. In
any other circumstance, the Buyers are required to receive additional approval to exceed
the price authorized in the requisition by more than $1,000 per line item. In reality, the
Buyer’s discretion in committing Wolf Creek’s credit is limited to the $1,000 per line
item the Buyer can deviate from the requisition. In comparison to $21 million per year,
34
this $1,000 of authority is relatively insignificant.11 Cf. Lockheed, 217 N.L.R.B. at 575
n.10 (“[W]hile the ability to commit [$50,000] of an employer’s credit may be highly
significant in the context of a small retail enterprise, it is of far less significance in the
context of the aerospace industry.”). We reject Wolf Creek’s argument that we should
deny the application to enforce the 2018 Decision because the Regional Director failed to
rely on Board precedent.
ii. Comparison to Washington Post
Second, Wolf Creek argues the Regional Director “erred in comparing the . . .
Buyers to other non-managerial employees whose duties and authority are wholly
dissimilar,” such as those in Washington Post. Wolf Creek’s Br. at 49. In Washington
Post, the assistant purchasing manager spent half her time in the stock area determining
what items, such as scotch tape, paper, and preprinted forms, needed to be purchased and
ordering them, authorizing between $25,000 and $50,000 in purchases per month. 254
N.L.R.B. at 189. The employer’s guidelines “assist[ed] the purchasing agents when they
seek to secure items.” Id. Generally, bids were solicited from three vendors, and then,
using “price and quality as guidelines,” “the most appropriate vendor for the Employer”
would be selected. Id. The Board found the assistant purchasing manager was
nonmanagerial because while she was “able to commit the Employer to purchasing stock
11
Wolf Creek also argues that the Regional Director failed to take into account the
$300,000 the Buyers saved Wolf Creek. The Regional Director did take this into account,
but he found the savings occurred in the course of following Wolf Creek’s procedures
and did not make the Buyer’s managerial employees.
35
items, [she] must conform to certain Employer guidelines, and, on occasion, must clear
decisions with higher department or company authorities.” Id.
Wolf Creek argues it is “absurd” to compare the Buyers purchasing goods and
services for a nuclear power facility with the assistant purchasing manager in Washington
Post, who purchased scotch tape and paper. Here, “the Buyers are often purchasing
equipment under onerous specifications needed to ensure the safety of the entire facility.”
Wolf Creek’s Reply Br. at 11.12 We are unpersuaded. The Buyers have little to no
discretion when it comes to technical and safety-related items.13 Recall that the Buyers
are limited to approved vendors for all safety-related items, and the Buyers cannot issue a
purchase order for safety and special scope purchases without final approval by others.
Relatedly, any technical changes to RFQs must be approved by the appropriate
department. And the Buyers consult with the requestor when evaluating purchase options,
except for low cost, routine purchases.
The Regional Director’s comparison to Washington Post is not so far out of
bounds that we would deny the application for enforcement on that ground.
12
In support of this proposition, Wolf Creek cites to transcript pages 399:19–
400:11. Importantly, within that testimony, the Buyer says, “I’m not going to choose out
of those bids who we are going to purchase the fans from. That would be done . . . by the
engineering department . . . .” Tr. at 400:1-4.
13
The record reflects that the Buyers do, however, have discretion in deciding
whether to competitively bid items such as toilet paper and nuts and bolts.
36
iii. Comparison to Lockheed
Finally, Wolf Creek argues the Regional Director’s reliance on Lockheed
“constitutes an error at law.” Wolf Creek’s Br. at 49. In Lockheed, the buyers were
responsible for procuring items for their employer—a company engaged in the aerospace
industry—in response to requisitions. 217 N.L.R.B. at 574, 575 n.10. The decision to
procure items could be made only by an authorized individual in the organization; the
buyers did not have such authorization. Id.
After receiving a requisition, the buyers generated a bid list and selected a supplier
from the responses, although both actions were subject to review. Id. Once a supplier was
selected, the buyer was responsible for negotiating unsettled terms, usually including
price, based on an approved negotiation range. Id. When the terms were fixed, the buyer
was required to receive final authorization before executing a purchase order. Id. at 575.
After the purchase was completed, the buyer remained responsible for coordinating “the
Employer’s relationship with its suppliers and customers,” including “the resolution of
problems which arise in relation to items the [b]uyer has procured.” Id.
The Board concluded the buyers in Lockheed did not “have discretion in the
performance of their jobs independent of their employer’s established policy.” Id. In
reaching that conclusion, the Board was “not unmindful of all the various activities and
functions of the [b]uyers, particularly their credit committing function” to the tune of
$770 million each year. Id. at 575 & n.10. But the buyers’ activities were “circumscribed
to varying degrees by the Employer’s established policy or by the review power placed in
37
higher authority.” Id. at 575. Therefore, the Board concluded the buyers did “not exercise
sufficient independent discretion in their jobs to truly align them with management.” Id.
Wolf Creek argues Lockheed is inapposite because those buyers (1) were not
subject to educational requirements; (2) had little discretion in formulating bid lists;
(3) were given a level of authorization based on estimated cost of procurement rather than
the requestor’s purchasing power; (4) were subject to greater scrutiny when selecting
winning bidders; and (5) “could not be further from” the Buyers in this case because the
Buyers “alone are responsible for resolving issues, including negotiating price and
delivery disputes.”14 Wolf Creek’s Br. at 45–47.
Wolf Creek fails to explain the significance of the educational requirements or
how the level of purchasing power is determined. While there are some differences
between the procurement process used by Lockheed and that used by Wolf Creek,
including whether limitations on discretion were imposed by supervisor review or by
employer policy, those differences are not so substantial as to compel rejection of the
Regional Director’s conclusion. And the distinctions between the Buyers here and the
employees in Lockheed and Washington Post are no more material than the differences
14
This fifth argument is an inaccurate characterization of the buyers’
responsibilities in Lockheed. The Board explicitly determined the buyers were
responsible for negotiating unsettled terms and conditions, including price, and for
“coordinat[ing] the Employer’s relationship with its suppliers and customers,” including
“the resolution of problems which arise in relation to items the Buyer had procured.”
Lockheed, 217 N.L.R.B. at 574–75. Additionally, as discussed above, there is substantial
evidence to support the Regional Director’s conclusion in this case that the Buyers are
not responsible for negotiating the final price.
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between the Buyers and the managerial employees in the cases advanced by Wolf Creek.
In summary, prior Board decisions do not provide any basis for refusing to enforce the
2018 Decision.
b. General substantial evidence for nonmanagerial status
The Regional Director ultimately concluded the Buyers were nonmanagerial
employees because they “operate within the confines of detailed policies, and they do not
exercise the type of discretion indicative of managerial status.” 2017 Decision at 10.
There is substantial evidence in the record to support that finding.
From the initiation of the procurement process forward, the Buyers’ discretion is
cabined by Wolf Creek’s policies. As discussed, the requestors, not the Buyers, determine
what items to purchase and the amount to be spent—within $1,000 per line item. And no
matter what, the Buyers’ spending authority is limited to $250,000, absent special
authorization.
Although Buyers are generally required to competitively bid purchases expected to
exceed $50,000, various circumstances have reduced competitive bidding to 10% of
purchases. This is true even though the Buyers have the discretion to competitively bid
purchases below the $50,000 threshold. For example, Wolf Creek’s policy does not
require competitive bidding when there are alliance agreements in force, there are
“[f]ewer than three qualified suppliers,” during plant emergencies, or when there is an
“[e]stablished supplier that has previously demonstrated a competitive cost.” Employer’s
Ex. 1 at p. 3, no. 6.1. Competitive bidding is further limited due to the age of the plant
and the specialized nature of some materials needed. In addition, all safety-related
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purchases must be made from an approved supplier and there is often only one approved
supplier, obviating the need for competitive bidding.
If a purchase is competitively bid, the Buyer has the discretion to create the list of
places to send RFQs, except for safety-related items, which are limited to approved
suppliers. By policy, the Buyers determine which suppliers to send RFQs “based on
commercial, technical, and/or quality considerations” and “should consider source
recommendations offered” by the requestor. Employer’s Ex. 1 at p. 4, no. 6.3. If a
supplier requests an exception to the RFQ that consists of any technical changes to
equipment, the Buyer is required to receive approval for the alteration. Under Wolf
Creek’s policy, the Buyer must communicate all exceptions or clarifications “to the
appropriate organization/department for resolution.” Employer’s Ex. 1 at p. 4, no. 6.5.1.
Once the Buyer receives bids, the Buyer will perform a commercial evaluation to
“determine the best cost, best delivery of the requested product.” Tr. at 184. Generally,
however, for routine or low-cost items the Buyer will simply select the lowest bid. But
the Buyer may select a slightly more expensive bid depending on delivery timeframes.15
Conversely, when there are technical purchases, it is up to the requesting department to
evaluate the technical requirements, the quality, the price, and the timeframe to determine
which bid to accept. And if the Buyer is not making a routine or low-cost purchase, the
Buyer will “consult the requestor” when deciding who won the bid. Tr. at 329.
15
In making this decision, the Buyer will still often consult with his or her
supervisor or the requestor.
40
Regardless of whether a purchase was competitively bid, the Buyers are generally
not authorized to submit a purchase order for an item for an amount greater than $1,000
per line item above the amount approved in the requisition. The Buyers are also not
allowed to submit a purchase order for “safety related and special scope purchases”
without review and approval from Procurement Quality. Employer’s Ex. 2 at p.7, no.
6.2.5. And the Buyers’ supervisor can cancel any purchase order after it is issued. Once a
purchase order issues, the Buyers are responsible for arranging shipping and have some
discretion in selecting a shipping service. But that discretion has been somewhat limited
by price negotiations through alliance agreements. Additionally, the Buyers will handle
some disputes with suppliers after the purchase has been completed.
The Supreme Court has emphasized that employees are managerial if they
exercise discretion in performing their job, but not “if th[at] discretion must conform to
an employer’s established policy.” Bell Aerospace, 416 U.S. at 288 n.16 (quoting Retail
Clerks Int’l Ass’n, 366 F.2d at 645). The Regional Director considered all the evidence
and found that, “in nearly all aspects of their jobs, [the B]uyers ‘act[] within prescribed
limits under policies determined by company officials and only with clearance or
approval by superior authority.’” 2017 Decision at 10 (quoting Iowa S. Utils. Co., 207
N.L.R.B. 341, 345 (1973)). There is substantial evidence in the record supporting the
Regional Director’s conclusion that the Buyers are operating within the confines of
detailed policies. As one Buyer testified, “[t]he culture, [has] become a lot stricter. . . .
[Y]ou hear the term, literal compliance, literal compliance to procedures almost daily. I
mean, . . . you know, do it to the letter of the law.” Tr. at 156. The Regional Director’s
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conclusion that Wolf Creek failed to prove the Buyers are managerial employees is
“rationally based on articulated facts and consistent with the Act,” Yeshiva Univ., 444
U.S. at 691, so “we must accord great respect to the expertise of the Board,” Loretto
Heights Coll., 742 F.2d at 1255.
We reject Wolf Creek’s challenges and therefore conclude the Board is entitled to
enforcement of the 2018 Decision. See 29 U.S.C. § 160(e).
III. CONCLUSION
The Board “correctly interpreted and applied the law” and “its factual findings are
supported by substantial evidence in the record as a whole.” Greater Kan. City Roofing, 2
F.3d at 1051. We GRANT the Board’s application for enforcement of the 2018 Decision.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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