Wolf Creek Nuclear Operating Corporation

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 111 (N.L.R.B. 2016)

364 NLRB No. 111
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Wolf Creek Nuclear Operating Corporation and
United Government Security Officers of Ameri-
ca, International Union and its Local 252. Case
14–RC–160836
August 26, 2016
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On October 14, 2015, the Regional Director for Re-
gion 14 issued a Decision and Order, in which he found
that an Armour-Globe1 self-determination election in a
unit of all full-time and part-time Security Training In-
structors (SIs) at the Employer’s Burlington, Kansas fa-
cility was not appropriate. He concluded, instead, that
the SIs are managerial employees excluded from the pro-
tection of the Act, and accordingly dismissed the peti-
tion. Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, the Petitioner filed a
timely request for review, contending, inter alia, that the
Regional Director erred in finding that the SIs are mana-
gerial employees. The Employer filed an opposition.
On February 9, 2016, the National Labor Relations
Board granted the Petitioner’s request for review with
respect to whether the SIs are managerial employees.2
Thereafter, the Employer and the Petitioner filed briefs
on review, as did amicus the International Brotherhood
of Electrical Workers, Local 225 (IBEW Local 225).
The Board has delegated its authority in this proceed-
ing to a three-member panel.
The Board has carefully considered the entire record in
this proceeding,3 including the briefs on review. For the
reasons set forth below, we find, contrary to the Regional
Director, that the Employer has not established that the
SIs are managerial employees.
FACTS
The Employer operates a nuclear power reactor facility
in Burlington, Kansas. At that facility, the Petitioner
currently represents a unit of “all full-time and regular
part-time Armed Response Officers, Senior Security Of-
ficers, Access Control Officers, and Watchpersons em-
ployed by the [Employer] as guards as defined in Section

1 Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamp-
ing Co., 3 NLRB 294 (1937).
2 The Board denied review in all other respects.
3 The Petitioner and the Employer stipulated that the record from
case 14–RC–158769 could be considered in the present case; thus, we
have considered the record from that case as well.
9(b)(3) of the National Labor Relations Act” (collective-
ly, the SOs). The Petitioner and the Employer stipulated
that the SIs, like the SOs, are also guards within the
meaning of Section 9(b)(3).
As a nuclear power reactor facility operator, the Em-
ployer is required to develop a training and qualification
plan that complies with Nuclear Regulatory Commission
(NRC) regulations, and the NRC must approve that plan.
The record establishes that, in developing this plan, the
Employer also treats NRC Regulatory Guide 5.75 as a de
facto regulation rather than as mere “guidelines.”4
The four SIs work in the Security Support Section of
the Employer’s Security Department and are directly
supervised by the Security Training Supervisor. The SIs
are not required to have any outside training or educa-
tion, but they must have 3 years of experience working in
security or at a nuclear power reactor facility, must be
certified in firearms training, and must pass instructor
training. Generally speaking, the SIs conduct initial and
continuing training with the SOs and SO supervisors.
The SIs spend 60 to 70 percent of their time conducting
training; the remainder of their time is spent developing
training materials and otherwise preparing to train the
SOs and SO supervisors.
The SIs have four major job duties. First, the SIs de-
velop the lesson plans for classroom-style training pro-
grams, and they conduct the training itself. In creating
the lesson plans, the SIs must comply with the NRC reg-
ulations, and, as discussed above, they comply with NRC
Regulatory Guide 5.75, as well. The NRC regulations
require the Employer to identify the critical tasks that
must be performed to provide each specific security
function, and NRC Regulatory Guide 5.75 states that the
Employer should develop a comprehensive list of the
training elements for each of those critical tasks. At-
tachment 1 to NRC Regulatory Guide 5.75 lists 28 criti-
cal tasks,5 the training elements for each critical task, the
positions to which each training element applies, the fre-
quency with which each training element should be test-
ed, and the method of testing for each training element.

4 The Introduction to NRC Regulatory Guide 5.75 states that “[t]his
regulatory guide describes approaches and methodologies that the
[NRC] staff considers acceptable for the training and qualification of
security personnel at nuclear power reactor facilities,” but that, as a
regulatory guide, employers are not required to comply with it. How-
ever, witnesses for both the Employer and the Petitioner testified that
the Employer complies with NRC Regulatory Guide 5.75 and described
it as containing “requirements.”
5 NRC Regulatory Guide 5.75 states that an employer’s NRC-
approved training and qualification plan should reflect these 28 critical
tasks unless a task is not applicable to an employer’s operation, and that
an employer may consider adding additional tasks based on site-
specific duties. Only one of the 28 enumerated tasks is not applicable
to the Employer’s operation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The SIs revise the lesson plans as necessary to incorpo-
rate new or revised NRC regulations and changes in past
practices or management expectations.
After the SIs have developed or revised the lesson
plans, they may be reviewed by an end user, such as an
SO, and are always reviewed by the Security Training
Supervisor and approved by the Security Support Super-
intendent. The lesson plans are expected to be complete
when submitted for review, and are normally approved
with only minor changes.
When conducting the training itself, the SIs have the
authority to decide if additional documents will be given
to their students, if instructional videos will be shown, or
if subject matter experts will lecture. At the conclusion
of a given training program, the SIs do not actually certi-
fy the SOs in any of the required areas, but simply record
the date of completion. The SOs’ own supervisors con-
duct on-the-job training and certify that the SOs are qual-
ified in the required subject areas.
Second, the SIs create and administer the initial quali-
fication exams and the annual requalification exams that
the SOs and SO supervisors must pass. To create the
exams, the SIs consult a database that randomly selects
questions and then confirm that the selected questions
cover all of the elements required by NRC Regulatory
Guide 5.75.6 Most of the exam questions in the database
were written by SIs, but the SOs and SO supervisors may
also write questions. The Security Training Supervisor
must approve all exam questions. The NRC regulations
require that personnel must achieve a minimum score of
80 percent to pass an exam.
Third, the SIs conduct weapons training, qualification,
and requalification for the SOs and SO supervisors and
operate the Employer’s firing range. The NRC regula-
tions and, in particular, NRC Regulatory Guide 5.75,
contain extensive instructions for weapons training,7

6 NRC Regulatory Guide 5.75 states that, at a minimum, the exams
should test the following elements: (1) role of security personnel in
supporting safe operations of the facility; (2) the use of deadly force,
including the principles involved in the application, escalation, and de-
escalation of force; (3) 10 CFR Part 73 requirements for the protection
of Safeguards Information; (4) the authority of private security person-
nel; (5) knowledge of who has power of arrest and authority to detain;
(6) authority to search individuals and seize property; (7) offsite law
enforcement response; (8) tactics and force that an adversary group
might use to achieve its objectives; and (9) response force deployment,
tactical movement withdrawal, and use of support fire.
7 NRC Regulatory Guide 5.75 provides instructions for training em-
ployees on the skills and abilities required by the NRC regulations,
which are mechanical assembly, disassembly, weapons capabilities, and
fundamentals of marksmanship; weapons cleaning and storage; combat
firing (day and night); safe weapons handling; clearing, loading, un-
loading, and reloading; firing under stress; zeroing weapons and weap-
ons sighting adjustments; target identification and engagement; weap-
qualification, and requalification.8 The weapons qualifi-
cation and requalification tests are pass/fail as deter-
mined by a laser system.
Fourth, the SIs design, conduct, and evaluate the quar-
terly tabletop tactical response drills and the annual
force-on-force exercises, which are required by the NRC
regulations. The drills and exercises are intended to test
both the participants and the Employer’s defense plan.
The NRC regulations identify the types of threats that the
Employer must be prepared to defend against, and Regu-
latory Guide 5.75 lists the key program elements that
should be considered when creating scenarios for drills
and exercises.9 In addition, NRC Regulatory Guide 5.75
provides extensive guidance on the preparation and con-
duct of the drills and exercises.10 Further, NRC Regula-
tory Guide 5.75 outlines the critique process, the final
report, and the identification and resolution of deficien-
cies after a drill or exercise is completed.
ANALYSIS
Based on the foregoing facts, the Regional Director
found that the SIs formulate and effectuate the Employ-
er’s policies by creating, implementing, and enforcing
the Employer’s security training programs, and that the
SIs’ interests are more closely aligned with management
than the SOs because they plan and conduct training for
the SOs and, in particular, the SO supervisors. The Peti-

ons malfunctions; cover and concealment; weapons familiarization; and
use of deadly force.
8 For example, NRC Regulatory Guide 5.75 provides guidance on
the following elements that should be included in a tactical qualifica-
tion course: (1) the combined use of handguns and shoulder-fired
weapons employed during a contingency event according to the em-
ployer’s protective strategy; (2) firing from a reasonable and repre-
sentative facsimile of employer defensive positions, elevations, and
distances; (3) appropriate levels of stress and physical demands (e.g.,
engaging targets while on the move); (4) proper cover and concealment
tactics while engaging multiple targets, moving targets, and decision
making targets; (5) the ability to transition from one type of firearm to
another; (6) the ability to recover from simulated weapon malfunctions
(e.g., dummy rounds); (7) adherence to the safe handling of firearms
during simulated courses of fire; (8) firing at multiple targets, loading,
and reloading while wearing a protective mask (gas mask); (9) non
dominant (support) hand shooting; (10) use of the minimum quantity of
combined handgun and shoulder-fired weapon ammunition necessary
to demonstrate the ability to effectively implement the employer's pro-
tective strategy.
9 More specifically, NRC Regulatory Guide 5.75 lists the following
key program elements: (1) responding with sufficient numbers of secu-
rity personnel; (2) responding with appropriate timelines; (3) respond-
ing to protected positions; (4) responding with appropriate armament;
and (5) providing target set protection. It also lists 15 other program
elements that “contribute to the successful demonstration of the key
elements.”
10 In brief, NRC Regulatory Guide 5.75 provides instructions on
command and control; controller training and qualification process;
controller knowledge; training design, development, and implementa-
tion; safety; participant responsibilities; and rules of conduct.
WOLF CREEK NUCLEAR OPERATING CORP. 3
tioner and IBEW Local 225 primarily argue that the SIs
are not managerial employees because any discretion that
they exercise is severely restricted by the NRC regula-
tions. For the following reasons, we reverse the Region-
al Director and find that the Employer has not estab-
lished that the SIs are managerial employees.
“Managerial employees are defined as those who for-
mulate and effectuate high-level employer policies or
‘who have discretion in the performance of their jobs
independent of their employer's established policy.’”
The Republican Co., 361 NLRB No. 15, slip op. at 3
(2014) (quoting General Dynamics Corp., 213 NLRB
851, 857 (1974)); see generally NLRB v. Yeshiva Univer-
sity, 444 U.S. 672, 682 (1980). “Although the Board has
no firm criteria for determining managerial status, an
employee will not ordinarily be excluded as managerial
unless he represents management interests by taking or
recommending discretionary actions that effectively con-
trol or implement employer policy.” The Republican
Co., supra, slip op. at 3–4. The party asserting manage-
rial status bears the burden of proof. See id., slip op. at
4.
The fact that employees train or instruct other employ-
ees does not, in itself, make them managerial employees.
To the contrary, the Board has found that employees who
train or instruct other employees are not managerial em-
ployees if they do not exercise sufficient independent
discretion or judgment in carrying out those duties. See,
e.g., Roofing, Metal & Heating Associates, 304 NLRB
155, 161 (1991) (an employee who “spent the great bulk
of his time as an instructor with virtually no power or
authority to act autonomously in any meaningful sense or
deviate from . . . established policies” was not manage-
rial), enfd. sub nom. NLRB v. Roofers Local 30, 975 F.2d
1551 (3d Cir. 1992); A. Barton Hepburn Hospital, 238
NLRB 95, 96 (1978) (in-service education assistant, who
consulted with department heads who told her what train-
ing was needed in their areas, did not use independent
judgment in formulating training courses and therefore
was not managerial);11 Fairfax Family Fund, Inc., 195
NLRB 306, 308 (1972) (collection department instructor
was not a managerial employee because the employer
failed to produce any evidence that he assisted in formu-
lating and developing the collection policies on which he
instructed employees). However, the Board has found
that an employee who exercises significant independent
discretion in developing training programs is a manage-
rial employee. See Miller Electric Co., 301 NLRB 294,

11 The Board described the in-service education assistant as “a
teacher rather than someone who formulates and implements the man-
agement decisions of Respondent.” Ibid.
298–299 (1991) (employee who had overall responsibil-
ity for the development of a manual and training course
for foremen was a managerial employee).
Consistent with the foregoing precedent, we find that
the Employer has not established that the SIs are mana-
gerial employees, because any discretion that the SIs
exercise in developing or conducting the training pro-
grams is severely restricted by NRC Regulatory Guide
5.75. This is true of each of the SIs’ duties relied upon
by the Regional Director and the Employer as evidence
of the SIs’ purported managerial status.12
First, although the SIs develop the lesson plans for the
training programs and conduct the training, as discussed
in more detail above, Attachment 1 to NRC Regulatory
Guide 5.75 provides extensive instructions for the devel-
opment of the lesson plans and leaves very little room for
the SIs to exercise independent discretion.13 For exam-
ple, SI Craig Lawson testified that some lesson plan con-
tent is taken word for word from NRC Regulatory Guide
5.75, that he has never developed a lesson plan during his
five years as an SI, and that the Employer has used the
same lesson plans “for a long time.” SI Alvin Ayers tes-
tified that when developing lesson plans, “[w]e have a
limited amount of discretion, because the NRC kind of
gives us the guidance on what the qualification is going
to be.” Lawson further testified that the SIs do not have
much control over how the critical elements are taught.
Although in theory the SIs may select additional content
to cover during training sessions, Lawson testified that
during training, he simply gives his students the infor-
mation included in the lesson plans and clarifies anything
that they do not understand. Given that the SIs spend 60
to 70 percent of their time actually conducting training,
“there is,” testified SI Ayers, “not a lot of time for lesson
plan development.”

12 The Regional Director relied in part on the SIs’ role as custodians
of the Safeguards cabinets, which contain the Employer’s defense plan,
to find that the SIs effectuate the Employer’s policies. However, the
record indicates that the SIs merely possess the combination to the
Safeguards cabinets and retrieve documents from those cabinets for
employees who have a “need to know.” The Employer did not estab-
lish that the SIs exercise independent discretion to determine if an
employee has a “need to know,” or that they exercise independent
discretion to effectuate the Employer’s policies in any way in their role
as custodians of the Safeguards cabinets.
13 The RD stated that the SIs can “expand upon the NRC guidelines
and give instruction on subjects specific to the Employer’s practices,
facility environment, and equipment.” Although the Employer’s Secu-
rity Training Supervisor testified that the Employer goes “above and
beyond” Attachment 1 to NRC Regulatory Guide 5.75 in some areas,
the record does not contain any evidence of the SIs expanding on the
guidelines or developing plans and programs that go beyond the 28
critical tasks in Attachment 1. Therefore, this evidence does not
demonstrate that the SIs are managerial employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
In sum, the record does not establish that the SIs exer-
cise any significant degree of discretion independent of
NRC Regulatory Guide 5.75 in “developing” the lesson
plans, selecting any additional content for the lessons, or
in choosing the manner in which to teach the critical el-
ements. Quite the contrary.14
Second, the record does not establish that the SIs exer-
cise sufficient independent discretion when creating or
administering the exams that the SOs and SO supervisors
must pass. Although the SIs write many, but not all, of
the exam questions, the Security Training Supervisor
must approve those questions before they are entered into
the database, and the Employer, who bears the burden of
proof here, failed to provide any evidence regarding how
extensively the Security Training Supervisor reviews
those questions.15 Further, the exam database randomly
selects the questions for the exams; the SIs simply con-
firm that the selected questions cover all of the elements
required by NRC Regulatory Guide 5.75. Finally, the
NRC regulations require that personnel must achieve a
minimum score of 80 percent to pass an exam, so the SIs
have no discretion to determine whether an individual
passes or fails.
Third, although the SIs conduct weapons training and
qualification, here, too, they exercise very little discre-
tion because NRC Regulatory Guide 5.75 contains exten-

14 Our dissenting colleague describes Attachment 1 to NRC Regula-
tory Guide 5.75 as merely providing “a general list” of “training sub-
jects.” However, as noted previously, NRC Regulatory Guide 5.75,
which the Employer treats as a de facto regulation, states that an em-
ployer’s NRC-approved training and qualification plan should reflect
the 28 critical tasks in Attachment 1 unless a task is not applicable to an
employer’s operation. Further, the Employer’s Security Training Su-
pervisor Bryan Gagnon testified that “Attachment 1 is a list of critical
job functions that the officers are required to maintain proficiency in.”
Because the Employer failed to provide specific evidence that the SIs
have developed critical tasks beyond the tasks listed in Attachment 1,
the record evidence shows that Attachment 1 effectively determines the
critical tasks on which the SOs and SO supervisors are trained, the
training elements for each critical task, the specific positions that are
tested on each training element, the frequency with which each training
element is tested, and the method of testing for each training element.
Although we do not assert that NRC Regulatory Guide 5.75 and the
other NRC Regulations form the entire basis for the lesson plans, based
on the evidence before us, we cannot find, as our colleague apparently
does, that the Employer has established that the SIs exercise a “consid-
erable amount of independent discretion” in developing the lesson
plans.
15 Our dissenting colleague correctly states that we do not dispute
the Regional Director’s finding that “the [Employer’s] expectation is
that the lesson plans are submitted complete and little, if any, changes
are made by management,” because the record supports that finding.
However, the exam questions are created and reviewed separate and
apart from the lesson plans. The Employer did not produce any evi-
dence, and the Regional Director did not make any finding, that the
Security Training Supervisor makes “little, if any, changes” to the exam
questions during review.
sive instructions for weapons training and qualification.
Moreover, the SIs certify merely that the course has been
completed; the weapons qualification tests are pass/fail
as determined by a laser system.
Fourth, the record does not establish that the SIs exer-
cise sufficient independent discretion in designing, con-
ducting, and evaluating the tabletop drills and the force-
on-force exercises. Once again, NRC Regulatory Guide
5.75 provides extensive instructions and guidance re-
garding the drills and exercises. The SIs also have to
take the Employer’s defense plan into account when de-
signing the drills and exercises because these drills and
exercises are intended to test the defense plan, and no
witness had any knowledge that the SIs are involved in
the creation of the defense plan.16 Finally, the record
suggests that the SIs exercise very little discretion during
the critique process; Lawson testified that during that
process, he simply asks the participants questions from a
form and records their answers.
Overall, the Employer has failed to demonstrate that
the SIs exercise sufficient independent discretion in car-
rying out their duties such that they formulate or effectu-
ate the Employer’s high-level policies. In reaching a
contrary finding, the Regional Director primarily relied
on Miller Electric, supra. In that case, however, the al-
leged managerial employee had overall responsibility for
developing a manual and training course for foremen,
among other duties, and the employer exercised only
limited oversight over that employee. See id. at 295–
299. The putative managerial employee was not required
to adhere to any guidelines at all, let alone guidelines that
were as extensive as NRC Regulatory Guide 5.75. See
ibid. Thus, that employee exercised significantly greater

16 Our dissenting colleague fails to acknowledge the limitation on
the SIs’ discretion presented by the mandate that they take the defense
plan into account, along with NRC Regulatory Guide 5.75, in develop-
ing and conducting the tabletop drills and the force-on-force exercises.
Ayers testified that the SIs “can’t just come in and say, ‘Hey, I want to
do this to the plant.’” Lawson testified that the Employer’s defense
plan “dictates where people are and what position they are in, and what
they do.” Lawson further testified that the SIs merely develop scenari-
os to attack the plant in different locations and in different ways in
order to evaluate whether the SOs are doing “what they are supposed to
do.” Additionally, as our dissenting colleague discusses in more detail,
the NRC regulations identify the types of threats that the Employer
must be prepared to defend against, and, thus, represent another source
of authority that limits the SIs’ discretion in developing the tabletop
drills and force-on-force exercises.
WOLF CREEK NUCLEAR OPERATING CORP. 5
independent discretion than the SIs here and essentially
formulated new employer policies regarding foremen.17 We
find that the SIs are more like the in-service education assis-
tant in A. Barton Hepburn Hospital, supra, who consulted
department heads to determine what training was needed.
The SIs consult NRC Regulatory Guide 5.75 to develop the
lesson plans, exams, drills, and exercises, and thus, like the
in-service education assistant in A. Barton Hepburn Hospi-
tal, supra, are more akin to teachers than to employees who
formulate and implement the Employer’s high-level poli-
cies.
Finally, we do not believe that the purpose of the
Board’s managerial employee exclusion, which is “[t]o
ensure that employees who exercise discretionary author-
ity on behalf of the employer will not divide their loyalty
between employer and union,” Yeshiva University, supra,
444 U.S. at 687–688, will be advanced by finding that
the SIs are managerial employees. If the SIs choose to
join the existing unit, the SIs will continue to exercise
only limited discretion in complying with the detailed
instructions in NRC Regulatory Guide 5.75 to carry out
their duties.18
Accordingly, for the reasons discussed above, we re-
verse the Regional Director and find that the Employer
failed to establish that the SIs are managerial employees.
ORDER
The Regional Director’s finding that the Security
Training Instructors are managerial employees is re-
versed, and this case is remanded to the Regional Direc-

17 In Miller Electric, supra, although the Board emphasized that the
putative managerial employee developed an extensive training program
for supervisors, it did not purport to hold that any individual who de-
velops a training program for supervisors is necessarily a managerial
employee, regardless of the degree of independent discretion that he or
she exercises in doing so. See id. at 298–299. In the present case,
although the SIs develop lesson plans and conduct training for SO
supervisors, they simply do not exercise the degree of independent
discretion necessary to establish that they are managerial employees.
In the other cases cited by the Regional Director, there was no evidence
that the individuals lacked independent discretion. See Miehle Printing
Press & Mfg. Co., 113 NLRB 1252, 1253 (1955); Peter Kiewit Sons’
Co., 106 NLRB 194, 196 (1953); Minnesota & Ontario Paper Co., 92
NLRB 711, 714 (1950). Therefore, like Miller Electric, supra, those
cases are distinguishable from the present case.
18 Like our dissenting colleague, we acknowledge that maintaining
the security of the Employer’s facility is of the utmost importance.
However, neither the SI’s security orientation nor the importance of the
job they perform has any bearing on whether the SIs are managerial
employees. Indeed, none of the statutory or nonstatutory exclusions
from the Act’s definition of employee are premised on the importance
of the work performed. Our colleague’s implicit suggestion that em-
ployees’ involvement in matters of national security is relevant to their
right to select union representation (or not) finds no support in the Act
or precedent.
tor for further appropriate action consistent with this De-
cision on Review and Order.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
The Employer operates a nuclear power facility. Be-
cause of the nature of the Employer’s product, nuclear
energy, its operations are strictly regulated by the Nucle-
ar Regulatory Commission (NRC). The NRC requires
that operators like the Employer, to protect the health and
safety of the public, design and implement security plans
to prevent potential attacks against their facilities. At the
Employer’s facility, four security training instructors
(SIs) are responsible for ensuring that all security officers
there have the skills, training, and qualifications neces-
sary to perform this important task. The issue is whether
these SIs are managers. The Regional Director deter-
mined that they are managers and thus dismissed a peti-
tion seeking a self-determination election among them.
My colleagues disagree and reverse the Regional Direc-
tor.
Contrary to my colleagues, I agree with the Regional
Director that SIs are managerial employees. Although
SIs rely on NRC guidelines when preparing lesson plans
and designing training exercises, the record plainly
demonstrates that they exercise a significant degree of
independent discretion when doing so. Given the critical
role SIs play in furthering the Employer’s efforts to se-
cure its facility, I also agree with the Regional Director
that SIs’ interests are more closely aligned with man-
agement than with unit employees. Accordingly, I do
not believe that the Petitioner has met its considerable
burden of showing that the Regional Director’s determi-
nation departs from Board precedent or was clearly erro-
neous on a factual issue.1

1 See Board’s Rule and Regulations Sec. 102.67(c) and (d).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
DISCUSSION
Before examining the central dispute here—the precise
role certain NRC guidelines2 play in SIs’ job perfor-
mance—it is worth pausing to consider the critical im-
portance of maintaining the overall security of the Em-
ployer’s facility. The NRC promulgated its guidelines to
ensure that operators like the Employer design “perfor-
mance criteria for detecting, assessing, interdicting, and
neutralizing threats up to and including the design basis
threat (DBT) of radiological sabotage, thereby preventing
significant core damage and spent fuel sabotage.”3 The
NRC defines “radiological sabotage” as a “determined
violent external assault, attack by stealth, or deceptive
actions, including diversionary actions, by an adversary
force.”4 The NRC also provides that operators should
develop plans to thwart “theft or diversion of formula
quantities of strategic special nuclear material.”5
Make no mistake. The Employer’s operations are not
limited to the production of nuclear energy. Protecting
its facility, employees, and the public at large from radio-
logical sabotage and theft of nuclear material is just as
much the Employer’s business interest.6 As explained
below, SIs play a critical role in this matter vital to na-
tional security.
To protect itself against acts of radiological sabotage
or theft, the Employer maintains a structured Security
Department, which consists of two divisions, Security
Operations and Security Support, each overseen by a
superintendent. In Security Operations, Security Officer
Supervisors (SO supervisors), who maintain military-

2 See NRC Regulatory Guide 5.75, Training and Qualification of
Security Personnel at Nuclear Power Reactor Facilities, July 2009 (“RG
5.75” or “NRC guidelines”).
3 Id., Introduction par. 3.
4 10 CFR § 73.1(a) (2012). “Radiological sabotage” can include
any number of attack “modes,” ranging from a “single group attacking
through one entry point” to “a combination of one or more groups and
one or more individuals attacking through multiple entry points.” 10
CFR § 73.1(1)(i). Such attacks can involve, among other things,
“[w]ell-trained . . . and dedicated individuals, willing to kill or be
killed,” the use of “handheld automatic weapons, equipped with silenc-
ers and having effective long range accuracy,” “incapacitating agents
and explosives,” and a “bomb assault.” 10 CFR § 73.1(1)(A-E).
5 10 CFR § 73.1(2)
6 Additional record evidence confirms this. The Employer main-
tains a security defense plan, which outlines its “strategy to protect and
defend the plant, its employees, and the public from internal or external
threats and attacks.” Regional Director’s Decision and Order (“D&O”)
at 11. Security Training Supervisor Bryan Gagnon testified that the
purpose of tactical drills (described in more detail below) is to “defend
the public’s health and safety.” The Employer’s SI job description
provides that SIs are responsible for “developing training materials . . .
and conducting training to develop the knowledge, skills, and abilities
of the security personnel in the performance of their job duties in the
protection of the plant from theft or sabotage of special nuclear materi-
al.”
type ranks, oversee armed response officers, senior secu-
rity officers, access control officers, and watchpersons,
who are collectively referred to as security officers
(SOs). Approximately 100 SOs work at the Employer’s
facility. SIs work in Security Support and are supervised
by a Security Training Supervisor. SIs must be certified
in firearms training, must pass NRC instructor training,
and must have at least three years’ experience working as
security officers.
Relying on NRC guidelines, management expecta-
tions, information obtained from similar facilities, sub-
ject matter experts, past practices, and their own occupa-
tional experiences, SIs “develop lesson plans, design
training programs, and create rules for the protection of
the Employer’s property and personnel to satisfy NRC
guidelines.”7 While an end user reviews the lesson plans
developed by SIs, the Employer expects those plans to be
complete when submitted for review. Indeed, end users
typically approve plans with only minor changes. Dur-
ing classroom instruction, SIs may supplement their les-
son plans with outside documents, instructional videos,
and lectures from subject matter experts. SIs also create
and administer on-the-job training, continuing education,
and qualification exams to SOs and SO supervisors.
While SIs write exams by accessing a database of al-
ready-written questions, all questions drawn from the
database were initially written by SIs. Consistent with
NRC guidelines, SIs train SOs and SO supervisors on the
use of firearms.
SIs also design and implement tactical “tabletop”
drills, which simulate a variety of real-life security-
related scenarios on 3D models of the facility, and
“force-on-force” drills, which involve simulated security
threat drills conducted on facility grounds. The Regional
Director explained:
The SIs design the drills and exercises to comply with
the NRC guidelines. Tactical response drills are limited
to specific security issues while the force-on-force exer-
cises are plant-wide and may involve other non-security
personnel and outside sources, including employees from
other employer facilities. The SIs act as the lead control-
lers for the adversary role and they determine the place-
ment and duties of the various players in the drill scenar-
ios. The tactical exercises may last from 1 to 6 hours and
occur quarterly in each of the 6 security operation blocks.
The force-on-force exercises occur 6-8 times per year.
Local law enforcement is notified of all force-on-force
exercises to eliminate any fears of a real security threat.

7 D&O at 6–7.
WOLF CREEK NUCLEAR OPERATING CORP. 7
These drills and exercises are conducted by the SIs to
ensure the Employer’s security operations can keep the
employees, public, and the facility safe from internal and
external threats. After each drill, the SIs, as well as the
training supervisor, the Security Support superintendent
and the Security Department manager, then critique the
performance of the players in the drill. The SIs conduct
the critique by asking questions designed to address NRC
guidelines and record the results. Every third year, the
NRC attends and evaluates the force-on-force exercise
and determines whether the facility passes its review.
Individual personnel are not critiqued. The SIs serving as
lead controllers in the force-on-force exercise will cri-
tique their opponent’s performance. Lessons learned
from the exercise are then incorporated by the SIs into
their lesson plans for classroom instruction.8
The Regional Director found that SIs formulate and ef-
fectuate the Employer’s policies by creating, implement-
ing, and enforcing this security training. The Regional
Director further found that SIs’ interests are more closely
aligned with management. Notwithstanding NRC guide-
lines, the Regional Director found that SIs exercise dis-
cretion when performing their jobs. Accordingly, the
Regional Director found that SIs are managerial employ-
ees and thus dismissed the petition seeking a self-
determination election in a unit of full-time and part-time
SIs.
In reversing the Regional Director, my colleagues find
that SIs are not managerial employees because any dis-
cretion they exercise in developing and conducting the
training of SOs and SO supervisors is “severely restrict-
ed” by NRC guidelines. I respectfully disagree. In my
view, the NRC guidelines reinforce a conclusion that
they grant, and effectively require, SIs to exercise a sig-
nificant amount of independent discretion when perform-
ing their training duties.
NRC guidelines concerning drills and exercises pro-
vide an instructive example. The NRC provides that
licensees “should use” five “key program elements”
when developing scenarios for drills and exercises.9 The

8 Id. at 10.
9 RG 5.75 § 5.4(a). These elements are as follows: “(1) Responding
with sufficient numbers of security personnel. The licensee has the
required number of response personnel to effectively implement the
protective strategy and protect the target sets against the DBT, (2)
Responding with appropriate timelines. Response personnel have
adequate time to reach their response positions in advance of the adver-
sary timelines, (3) Responding to protected positions. Response per-
sonnel use appropriate protection and cover, (4) Responding with ap-
propriate armament. Response personnel are supplied with, or have
readily available, the weapons and equipment necessary to execute their
responsibilities and are appropriately trained and qualified in the use of
the weapons and equipment, and (5) Providing target set protection.
NRC has also identified 15 additional elements, which it
explains can “also contribute to the successful demon-
stration of the key elements.”10 NRC guidelines further
explain that “security conditions that exist in the specific
area are the optimum choice for a drill or exercise sce-
nario.”11 Drills and exercises should also take into ac-
count “a variety of environmental and plant conditions,”
including time scenarios (“day or night”), power opera-
tions (“at power to refueling or other major mainte-
nance”), and “both armed responders and mock adver-
saries.”12
I do not agree with my colleagues that these guidelines
severely restrict SIs’ discretion in the design and imple-
mentation of drills and exercises. Quite the opposite,
these guidelines simply provide a foundation of key ele-
ments and contingencies—albeit important ones—that
SIs must draw from when designing drills and exercises.
Suggesting that an exercise or drill should include broad-
ly worded elements like “environmental and plant condi-
tions,” “time scenarios,” “appropriate armament,” “target
set protection,” “use of deadly force,” “proper use of
defensive positions,” and “mock adversaries”—just to
name a few—does not provide a step-by-step recipe for
training, as my colleagues appear to find. At most, these
guidelines provide a list of suggested ingredients. They
do not contain any specific scenarios for drills and exer-
cises. SIs must carry out the significant responsibility of
translating these guidelines into teachable skills. It simp-
ly defies logic to suggest, as my colleagues do, that these
generalized guidelines provide all that is needed to de-
sign and implement a full-scale, day-long simulated at-
tack on the Employer’s facility that is so realistic it ne-
cessitates prior notification to local law enforcement of-
ficials.
Testimony from two high-ranking members of the
Employer’s Security Department confirms this. SI Su-
pervisor Gagnon testified that SIs go “above and be-
yond” NRC guidelines and “come up with what the exer-
cise is going to be . . . [t]hey will run the exercise itself.”
Superintendent of Security Kenn Tate similarly testified
that for force-on-force exercises, SIs “will prep a scenar-
io based—they will outline and scope the event out and
make that determination on how many [SOs] will use to
conduct that drill or exercise.” Moreover, SIs’ formula-

Response plan and response personnel prevent the DBT from complet-
ing sabotage of all components of any target set.”
10 See § 5.4 (b). These additional elements include, among others,
“coordination and planning,” “command and control,” “individual [and
team] responder tactics,” “use of deadly force,” “weapons handling and
proficiency,” “proper use of defensive positions,” and “deployment of
responders and equipment.”
11 § 5.6.
12 § 5.7(a) and (b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tion of training drills and exercises is not confined to
NRC guidelines. SIs rely on a variety of factors, includ-
ing information obtained from similar facilities, subject
matter experts, past practices, and their own occupational
experiences. And SIs’ involvement in these drills and
exercises goes beyond their design and implementation.
SIs participate in the critique of completed scenarios,
which are used to ensure that the Employer passes NRC
on-site reviews. Given this record evidence, I do not
believe that the Regional Director erred by finding that
“SIs have the discretion to take the NRC guidelines and
then apply those guidelines to fit the Employer’s own
security system.”13
As for the lesson plans, classroom instruction, and ex-
aminations developed and conducted by SIs, the guide-
lines relied upon by my colleagues merely provide a
general list of 28 “critical [job] functions,”14 which the
Regional Director alternatively described as “training
subjects.”15 These broad training subjects are broken
down into tasks, which include, among others, “react to
detection of contraband,” “search vehicle,” “observe em-
ployees/visitors for suspicious behavior,” “[r]espond to
confirmed tampering events,” “react to loss of intrusion
detection,” “react to discovery of contraband and prohib-
ited items,” “determine if a legal arrest may be made,”
“identify tactics and force that an adversary group might
use to achieve its objective,” “react to a hostage situa-
tion,” and “receive/react to a bomb/attack/extortion
threat.” Similarly, for annual written examinations, NRC

13 D&O at 15.
My colleagues note that the Employer maintains a “defense plan,”
which the Regional Director described “is the Employer’s defensive
security strategy to protect and defend the plant, its employees, and the
public from internal or external threats and attacks.” D&O at 11. My
colleagues cite SI Lawson’s testimony that the plan “dictates where
people are and what position they are in, and what they do.” Accord-
ingly, I do not dispute my colleagues’ determination that the record
supports a finding that SIs “take the defense plan into account.” This
general finding—that SIs simply “take . . . into account” the plan—is
consistent with the remainder of the record evidence here, which estab-
lishes that SIs rely on a variety of resources to formulate and implement
security personnel training, but nonetheless exercise a considerable
amount of independent discretion when doing so. Indeed, even my
colleagues acknowledge that Lawson also testified that SIs “develop
scenarios to attack the plant in different locations and in different ways
in order to evaluate whether the SOs are doing ‘what they are supposed
to do.’”
14 See RG 5.75, Attachment 1. These functions include, among oth-
ers, “perform visitor access control,” “control personnel access to pro-
tected and vital areas,” “perform material search,” “conduct security
patrols,” “determine amount of force required to prevent an unauthor-
ized act,” and “react to bomb, hostage, and civil disturbance situations.”
Attachment 1 also lists the specific job positions that are subject to
particular tasks, the frequency with which each task is tested, and the
method of testing for each task.
15 D&O at 5.
guidelines require a minimum score of 80 percent and
provide that testing should include nine broad elements.16
I believe the record contradicts my colleagues’ charac-
terization of these training subjects and tasks as “exten-
sive instructions” that leave “very little room for the SIs
to exercise independent discretion.” For example, con-
sider the NRC guidelines that officers be taught to “react
to a hostage situation” or a “bomb [] attack.” An SI must
rely on his or her experience, training, and judgment to
design exercises and tactics that train officers to meet
such challenges. The NRC guidelines cannot possibly
form the entire basis for instruction or examination con-
cerning such complicated and dangerous matters. Ac-
cordingly, as the Regional Director found with respect to
SIs’ involvement in lesson plans, while “NRC guidelines
dictate the various subject areas in which instruction
needs to be provided, the SIs determine the format and
content of each lesson.”17
In sum, the record establishes that SIs exercise a con-
siderable amount of independent discretion when formu-
lating and implementing security personnel training. As
the Regional Director correctly noted, the Board has
found that personnel who exercise independent judgment
to formulate and implement an employer’s training pro-
grams are managerial employees excluded from the Act’s
protection. See, e.g., Miller Electric Co., 301 NLRB
294, 298–299 (1991) (employee a manager where em-
ployer told him to “make this project happen” and “put [a
foremen’s training manual] together;” the employee “had
to pass judgment on the appropriateness of the various
provisions contained in the manual and what source ma-

16 § 6.1.3(c). These elements are “(1) role of security personnel in
supporting safe operations of the facility, (2) the use of deadly force,
including the principles involved in the application, escalation, and de-
escalation of force, (3) 10 CFR Part 73 requirements for the protection
of Safeguards Information, (4) the authority of private security person-
nel, (5) knowledge of who has power of arrest and authority to detain,
(6) authority to search individuals and seize property, (7) offsite law
enforcement response, (8) tactics and force that an adversary group
might use to achieve its objective, and (9) response force deployment,
tactical movement withdrawal, and use of support fire.”
17 D&O at 7.
Although my colleagues note the Regional Director’s broad finding
that a Security Training Supervisor must approve examination ques-
tions before they are entered into the Employer’s database, my col-
leagues do not dispute the Regional Director’s additional finding that
“the [Employer’s] expectation is that the lesson plans are submitted
complete and little, if any, changes are made by management.” D&O
at 14 (emphasis added). As the Regional Director correctly found, this
minimal involvement in the content of lesson plans does not “diminish
the SIs’ effective power in formulating and implementing the Employ-
er’s security training program.” Id. at 15 (citing Republican Co., 361
NLRB No. 15, slip op. at 4 (2014) (newspaper editor, who was respon-
sible for determining the content of an editorial page, a managerial
employee where the employer “rarely” exercised its power to veto the
editor’s decisions)).
WOLF CREEK NUCLEAR OPERATING CORP. 9
terials would be used”); cf. Roofing, Metal & Heating
Assoc., 304 NLRB 155, 160–161 (1991) (apprentice in-
structor not a manager where he implemented a training
curriculum that “was already in place”).18
Finally, because of the nature of the Employer’s opera-
tions and the enormous national security responsibility of
protecting the Employer’s facility from potential attacks,
I agree with the Regional Director that SIs are more
closely aligned with management than with unit employ-
ees. If the Employer fails to properly secure its facility,
it can lose its operating license with the NRC. Through
classroom instruction, on-the-job training, written exam-
inations, and—most dramatically—through the devel-
opment and facilitation of simulated full-scale attacks
against the facility, SIs alone ensure that the Employer’s
100 security officers and their supervisors have the many
skills necessary to properly secure the facility. Given the
crucial role SIs play in fulfilling the Employer’s security
requirements, it strains credulity to find that SIs are not
managerial employees. See NLRB v. Yeshiva University,
444 U.S. 672, 682–683 (1980) (managerial employees
“formulate and effectuate management policies by ex-
pressing and making operative the decisions of their em-
ployer”); Miller Electric, 301 NLRB at 298–299 (“in
approving and reviewing the craft procedures manual,”
which was “the guide to train foremen who in turn train
or are responsible for the entire work force of craft em-
ployees,” the drafter of the manual “had to make deci-
sions that formulated and effectuated the Company’s
policies related to craft procedures”).

18 In support of their determination that SIs do not exercise suffi-
cient independent judgment, my colleagues cite SI Craig Lawson’s and
SI Alvin Ayers’ testimony. Although Lawson testified that he had
never personally created a lesson plan and the Employer has used the
same lesson plans “for a long time,” he acknowledged seeing “other
people working on one” and that “we have done [i.e., created]” the
lesson plans. Although Ayers testified that there is “not a lot of time
for lesson plan development,” and “[w]e have a limited amount of
discretion [developing the lesson plans], because the NRC kind of gives
us the guidance on what the qualification is going to be,” he immediate-
ly added, “we apply it to how it works in our system.” Regardless
Lawson’s and Ayers’ level of involvement in the development of the
Employer’s current lesson plans, the parties do not dispute that it is SIs’
exclusive responsibility to create lesson plans and that only SIs have
created all exam questions. And while Lawson testified that “some”
lesson plan content is taken “word for word” from NRC guidelines, a
plain reading of the guidelines establishes that they cannot possibly
form the entire basis for a multitude of important training topics.
SIs are also responsible for conducting weapons training and qualifi-
cation. Because the record plainly establishes that SIs exercise signifi-
cant independent instruction when performing the remainder of their
job duties, I need not pass on whether SIs also exercise discretion when
performing these weapons-related duties.
CONCLUSION
For the reasons set forth above, I believe that the rec-
ord compels a finding that the four SIs are managerial
employees excluded from the protection of the Act. I
would thus dismiss the petition seeking a self-
determination election in a unit of all full-time and part-
time SIs. Accordingly, I respectfully dissent.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD