Wolf Creek Nuclear Operating Corporation

National Labor Relations Board - Board Decisions

Apr 7, 2017

365 NLRB No. 55 (N.L.R.B. 2017)

365 NLRB No. 55
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 In-
ternational Brotherhood of Electrical Workers,
Local 225, Petitioner. Case 14–RC–168543
April 7, 2017
DECISION ON REVIEW AND ORDER REMANDING
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election is granted
in part and denied in part, without prejudice, and the case
is remanded to the Regional Director for further appro-
priate action.
The Regional Director found that the buyers in this
case, whom the Petitioner is seeking to represent, are
statutory employees, not managerial employees, and ac-
cordingly directed an election in a bargaining unit of
buyers. The Employer requests review on two separate
grounds: (1) that the Regional Director erred in not ap-
plying the doctrine of res judicata, based on a prior deci-
sion in a 2000 unit-clarification proceeding (17–UC–
210), in which an Acting Regional Director found that
the same classification of buyers at the Employer were
managerial employees; and (2) that, on the present rec-
ord, the Regional Director clearly erred in determining
that the buyers are not managerial employees. The Peti-
tioner has filed an opposition to the Employer’s request
for review.
We grant the Employer’s request with regard to the
application of res judicata doctrine because it raises a
substantial issue warranting review, for reasons ex-
plained below. On review, we conclude that a remand to
the Regional Director is appropriate. Accordingly, we
deny the Employer’s request in all other respects, with-
out prejudice.
In his decision, the Regional Director rejected the ap-
plicability of res judicata doctrine based on the earlier
decision finding the buyers to be managerial employees,
reasoning as follows:
While the Regional Director . . . did make such a find-
ing in 2000, the Board did not make an official or final
ruling on the issue. Indeed, the Board simply did not
grant review of the matter. Much like a writ of certio-
rari before the Supreme Court, the Board’s refusal to
grant review is not the same as an official ruling on a
subject. Since the Board did not issue an official ruling
on the issue of whether Buyers are managerial employ-
ees[,] the 2000 Decision does not rise to the level of a
final decision, and res judicata does not preclude the
Region from revisiting the status of the petitioned-for
employees.
Decision and Direction of Election at pp. 2–3 (italics omit-
ted). The Regional Director’s analysis was mistaken.
To begin, we note that the Regional Director misstated
the procedural history of the earlier case. In fact, no par-
ty—including the Union—filed a request for review of
the Acting Regional Director’s 2000 decision. Thus, the
Board never refused to grant review. As we will explain,
however, those circumstances do not mean that the 2000
decision cannot have preclusive effect.
The Board has explicitly held that Board decisions and
rulings in representation cases have preclusive effect in
subsequent representation cases. See Carry Cos. of Illi-
nois, 310 NLRB 860, 860 (1993).
It is also clear as a matter of Board law and procedure
that a Regional Director’s decision is final—and thus
may have preclusive effect—if no request for review is
made (as here) or if the Board denies a request for re-
view. It does not matter that the Board itself did not ad-
dress the issue.
Under general preclusion doctrine, a judgment is con-
sidered final, for purposes of preclusion, when it is “a
firm and stable one, the ‘last word’ of the rendering
court—a ‘final’ judgment.” Restatement (Second) of
Judgments § 13 cmt. a (1982). Plainly, a decision such
as the 2000 decision concerning the Employer’s buy-
ers—one that has not been appealed and that resolves the
disputed issues in a manner that is binding upon the par-
ties—is final for preclusion purposes.
Indeed, the Board’s Rules establish that decisions of a
Regional Director, even where review is not requested or
is denied, are to be accorded such finality. At the time of
the 2000 Acting Regional Director’s decision, Section
102.67(b) of the Board’s Rules and Regulations provided
that such a “decision of the regional director shall be
final,” subject to the procedure for requesting review by
the Board. 29 C.F.R. § 102.67(b) (2000). Section
102.67(f), in turn, provided that
[f]ailure to request review shall preclude . . . parties
from relitigating, in any related subsequent unfair labor
practice proceeding, any issue which was, or could
have been raised in the representation proceeding. De-
nial of a request for review shall constitute an affir-
mance of the regional director’s action which shall also
preclude relitigating any such issues in any related sub-
sequent unfair labor practice proceeding.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 C.F.R. § 102.67(f) (2000). The Board’s current rules are
to the same effect.1
Here, then, the failure of any party to seek review of
the Acting Regional Director’s 2000 decision does not
mean that the decision was not final. Just the opposite is
true. Cf. Premier Living Center, 331 NLRB 123, 123
(2000) (“[I]n the absence of newly discovered and previ-
ously unavailable evidence or special circumstances,”
employer not permitted to relitigate status of LPNs in UC
proceeding after it stipulated to LPNs’ non-supervisory
status in RC proceeding.).
We see no reason why a regional director’s decision
that could have preclusive effect in a related subsequent
unfair labor practice proceeding would not also be poten-
tially preclusive in a subsequent representation proceed-
ing involving the same parties and the same issue, alt-
hough the Board’s Rule and Regulations do not expressly
contemplate that scenario. The Board’s administrative
interest in finality—resolving questions concerning rep-
resentation quickly and definitively—is substantially the
same in either case.2
It follows, then, that the 2000 decision may have pre-
clusive effect here, unless the party seeking relitigation
of the previously decided issue satisfies its burden of
presenting new factual circumstances that would vitiate
the preclusive effect of the earlier ruling. See Carry Cos.
of Illinois, supra at 860 (“changed circumstances” excep-
tion to preclusion not established because “the Petitioner
has failed to produce” evidence of such); Harvey’s Re-
sort Hotel, 271 NLRB 306, 306–307 (1984) (applying
preclusion in context of unfair labor practice proceedings
and holding that when it is clear that an issue was “fully

1 Sec. 102.67(g) provides that the “regional director’s actions are fi-
nal unless a request for review is granted.” It further provides that the
failure to request review and the denial of a request for review will
have preclusive effect in a subsequent unfair labor practice proceeding.
See, e.g., Mirage Casino-Hotel, 364 NLRB No. 1, slip op. at 1 fn. 2
(2016) (giving preclusive effect in unfair labor practice case to regional
director’s decision following Board’s denial of request for review).
2 It makes sense that there is no Board rule expressly addressing the
issue-preclusive effect of a determination made in a prior representation
case in a subsequent representation case involving the same issue and
the same parties. In such a scenario, giving the determination in the
prior proceeding preclusive effect in the subsequent proceeding is
simply a matter of applying black-letter collateral estoppel doctrine.
See, e.g., NLRB v. Donna-Lee Sportswear Co., Inc., 836 F.2d 31, 34
(1st Cir. 1987) (stating elements of collateral estoppel, including identi-
ty of issues and identity of parties). Because the General Counsel is not
a party in any representation case but is a party in unfair labor practice
cases, having a Board rule that states the preclusive effect of represen-
tation-case findings in related unfair labor practice proceedings has the
particular effect of ensuring that preclusion principles apply even where
there is not an identity of parties as would normally be required to
establish preclusion. Such a rule, addressing a gap in preclusion ap-
plicability, readily coexists with a practice of applying normal preclu-
sion principles in situations where the traditional criteria are met.
litigated,” i.e., “put in issue and resolved in the earlier
proceeding,” preclusion applies unless evidence of
changed circumstances is produced). Here, the Regional
Director suggested that such changed circumstances may
be present, but—presumably because he had first con-
cluded that the 2000 decision could not have preclusive
effect—his decision did not articulate in sufficient detail
the nature of the changes or their materiality to the ques-
tion of the buyers’ managerial status. Accordingly, a
remand is in order.
Our dissenting colleague would affirm the Regional
Director’s refusal to give preclusive effect to the 2000
decision because, in our colleague’s view, the Employer
has not established the preclusive effect of that decision
even if the preclusion doctrine is applicable to this pro-
ceeding.3 We view this case differently.
To establish the prima facie applicability of preclusion,
an identical issue must have been fully litigated and must
have been an essential component of a valid final judg-
ment between the same parties. Donna-Lee Sportswear,
supra. Our colleague appears not to contest that the buy-
ers’ managerial status was fully litigated by these parties
and decided as an essential component of the 2000 final
decision. Moreover, there can be no doubt that identity
of issues has been established here. “An issue on which
relitigation is foreclosed may be one of evidentiary fact,
of ‘ultimate fact’ (i.e., the application of law to fact), or
of law.” Restatement (Second) of Judgments § 27 cmt. c
(1982). The “issue” in this case, for purposes of preclu-

3 Although our dissenting colleague chiefly argues that the Employ-
er here has not met the burden he would erroneously place on it to
establish the preclusive effect of the Board’s prior decision, he also
suggests that preclusion might not apply at all in representation cases.
The cases he cites for this latter proposition are distinguishable. In
Film & Dubbing Productions, Inc., 181 NLRB 583, 583 fn. 1 (1970),
the Board did not suggest that preclusion cannot apply in representation
cases; rather, it stated that the record there did not support a finding that
the employer’s translators in the petitioned-for unit were the same as
those found to be independent contractors in a prior representation case
involving the employer’s predecessor. Even assuming arguendo that
the case involved the same translators, the Board stated that it was “not
thereby precluded from again considering the status of these [transla-
tors] as it may appear from the present record,” thus indicating it dis-
cerned a change in circumstances apparent from the record before it. Id.
(emphasis added). Indeed, new material facts concerning the location
and supervision of translators’ work were presented in Film & Dub-
bing. Compare El Mundo, Inc., 127 NLRB 538 (1960). In Cement
Transport, Inc., 162 NLRB 1261, 1266 fn. 11 (1967), intervening
caselaw changed the nature of the analysis of an employee’s independ-
ent-contractor status, and this justified relitigation of the issue.
Further, as explained already, far more recent cases firmly establish
that issue preclusion applies in the representation-case context. For
example, Carry Cos. of Illinois, supra, expressly stands for the proposi-
tion that the disposition of an issue “fully argued and litigated” in an
earlier representation proceeding can be conclusive in a subsequent
representation proceeding “in the absence of evidence of changed cir-
cumstances.”
WOLF CREEK NUCLEAR OPERATING CORP. 3
sion, is an ultimate fact, gleaned by application of gov-
erning law to a set of evidentiary facts: whether the buy-
ers meet the legal definition of managerial employees.
Because this ultimate fact was litigated and decided in
the 2000 case between the parties, and the same ultimate
fact is in dispute in the present proceeding, the Employer
has demonstrated that the 2000 decision may be entitled
to preclusive effect.4
The Employer having done as much, the question be-
comes whether there are any changed circumstances that
would justify relitigating the managerial status of the
buyers. On that point, our colleague seemingly would
require that the Employer show an absence of changes
since the earlier decision for that decision to have preclu-
sive effect. To the contrary, it is appropriate to place the
burden on the party opposing preclusion—here, the Peti-
tioner—to demonstrate that material changes have oc-
curred since the prior decision. Indeed, once identity of
issues has been established, requiring the party asserting
preclusion also to show the absence of material changes
is inconsistent with preclusion cases generally, with the
cases discussed here,5 and with the underlying principles
of preclusion. With the goals of administrative finality
and efficiency in mind, it would be anomalous to require
that a party asserting preclusion engage in the quixotic
task of conclusively showing an absence of changed cir-
cumstances.6 Instead, imposing the burden on the party
opposing preclusion ensures that relitigation of an al-
ready-decided issue will occur only when it is warranted.

4 In Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305
(2016), cited by the dissent, the Supreme Court—in a case that consid-
ered whether bringing a new claim was precluded, as opposed to
whether relitigation of a particular fact or issue was precluded—held
that preclusion did not apply, but the Court did not specifically address
the question of whose burden it was to prove changed circumstances. It
did note, however, that it was the party that opposed claim preclusion
that had produced evidence of new facts. Id. at 2306 (“And the Court
of Appeals in this case properly decided that new evidence presented
by petitioners had given rise to a new claim and that petitioners’ as-
applied challenges are not precluded.”) (emphasis added).
5 E.g., Harvey’s Resort Hotel, supra at 307 (finding that doctrine of
collateral estoppel precluded the General Counsel from relitigating
status of the respondent’s floormen because “no . . . evidence [of signif-
icant job changes] was adduced in the instant proceeding”). Contrary
to the assertion of our dissenting colleague, the Board in Harvey’s
Resort Hotel did not place a burden on the party asserting collateral
estoppel to prove that circumstances have remained the same. Rather,
the Board placed the burden on the party opposing the application of
collateral estoppel to introduce “evidence that [the disputed classifica-
tion’s] job has changed significantly since the earlier litigation.” Id.
6 Moreover, requiring the Employer to prove that circumstances
have not changed runs counter to the general rule against requiring
parties to prove a negative. See, e.g., Evankavitch v. Green Tree Ser-
vicing, LLC, 793 F.3d 355, 366 (3d Cir. 2015) (“[A]ll else . . . being
equal, courts should avoid requiring a party to shoulder the more diffi-
cult task of proving a negative.”) (internal quotations omitted).
Moreover, the Regional Director has not made any
findings nor drawn any inferences that circumstances
have changed in a way that would materially alter the
analysis of the buyers’ managerial status.7 Rather, in
addressing the significance of the 2000 decision concern-
ing the buyers’ status, the Regional Director merely hint-
ed at the possibility that there may have been changes
occasioned by the passage of time and the implementa-
tion of new computer equipment. As we now hold, there
must be an affirmative finding of material changed cir-
cumstances when an identical issue was decided in an
earlier proceeding involving the same parties. The Re-
gional Director failed to make and support such a find-
ing. On remand, the Regional Director will have the
opportunity to consider precisely that question: whether
the record demonstrates changed circumstances sufficient
to allow reconsideration of the buyers’ managerial status.
In making that determination, it is of particular im-
portance that the Regional Director examine any factual
changes in context and in light of the relevant statutory
question.
Thus, without expressing any view on the issue in the
first instance, we remand this case to the Regional Direc-
tor to more fully consider whether changed circumstanc-
es warrant declining to give the 2000 decision preclusive
effect and to issue an appropriate supplemental decision.
The Regional Director may, within his discretion, reopen
the record to take additional relevant evidence.8

7 Applying his view of the proponent’s burden in preclusion cases,
our dissenting colleague would find that the passage of over 16 years,
along with new workplace methods utilized by the buyers in 2016,
would defeat the Employer’s assertion of preclusion. Although passage
of time, depending on the context, may suggest changed circumstances,
it does not establish that fact. We note that although the passage of
time alone is insufficient to satisfy the Petitioner’s burden to prove
changed circumstances, that burden is not an onerous one. The Peti-
tioner need only point to “‘one material differentiating fact’” in order to
relitigate the issue of the buyers’ managerial status. See Miller’s Ale
House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1319
(11th Cir. 2012) (quoting CSX Transp., Inc. v. Brotherhood of Mainte-
nance of Way Employees, 327 F.3d 1309, 1317 (11th Cir. 2003)). Our
colleague also alludes to record evidence of some changes in the buy-
ers’ working conditions since the 2000 decision. The question, howev-
er, is whether those changes are material to the managerial status of the
buyers.
8 Because we now remand this case for the Regional Director to
reevaluate the threshold legal question of the preclusive effect of the
2000 decision, we deny without prejudice that portion of the Employ-
er’s Request for Review challenging the Regional Director’s finding,
on the current record, that the buyers are employees. If the Regional
Director reaffirms his ruling concerning the lack of preclusive effect of
the 2000 decision, the Employer may again file a request for review of
the Regional Director’s determination of the employee status of the
buyers, whether on the present record or the record, if any, developed
on remand.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
IT IS ORDERED that this case is remanded to the Re-
gional Director for further appropriate action consistent
with this decision.
Dated, Washington, D.C. April 7, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER PEARCE, dissenting.
At issue is whether the Regional Director erred in find-
ing that the petitioned-for buyers were statutory employ-
ees and not managerial employees. The majority finds
that the Employer presented prima facie evidence that
litigation of the buyers’ status may be barred in this pro-
ceeding based on an Acting Regional Director’s 2000
decision in a unit-clarification proceeding (Case 17–UC–
210). Finding further that the Regional Director’s deci-
sion did not “articulate in sufficient detail” whether there
were any changed circumstances that would justify liti-
gating the buyers’ status, my colleagues remand this case
to the Regional Director to further consider the nature of
any such changes. Contrary to my colleagues, I find that
the Regional Director did not err, and I reject the Em-
ployer’s argument that the doctrine of res judicata and
Section 102.67(g) of the Board’s Rules and Regulations
apply to this proceeding.
The Petitioner seeks to represent a bargaining unit that
includes the Employer’s full-time and part-time Buyers I,
II, III, and its Lead Buyer. The Employer has raised res
judicata as an affirmative defense, relying on an almost
17-year-old determination that individuals classified as
Buyers I, II, and III are managerial employees.1 Not-
withstanding the prior determination, the Petitioner con-
tends that litigation of the buyers’ status is permissible
because its evidence establishes that changes have im-
pacted the buyers’ duties.
Under the doctrine of res judicata, a valid and final
judgment of an administrative agency may preclude the
parties or their privies from subsequently litigating issues

1 The classifications at issue in Case 17–UC–210 included Quality
Specialist I, Quality Specialist II, Quality Specialist III, Buyer I, Buyer
II, and Buyer III. The Lead Buyer position was not, as here, at issue in
the prior proceeding.
that were or could have been raised in that proceeding.
See generally B & B Hardware, Inc. v. Hargis Industries,
Inc., 135 S.Ct. 1293, 1302–1306 (2015) (describing the
analytical framework for determining whether an agency
decision grounds issue preclusion); Restatement (Sec-
ond) Judgments § 83(1) (“a valid and final adjudicative
determination by an administrative tribunal has the same
effects under the rules of res judicata, subject to the same
exceptions and qualifications as a judgment of a court”).
However, a valid and final judgment has preclusive ef-
fect in a subsequent proceeding only where there is a
finding that the particular issue to be litigated is identical
to an issue that was or could have been raised in the pre-
vious proceeding. See generally B & B Hardware, supra
at 1306 (issue preclusion applicable in trademark litiga-
tion where “the issues in the two cases are indeed identi-
cal and the other rules of collateral estoppel are carefully
observed”) (quoting 2 J. McCarthy Trademarks and Un-
fair Competition § 32:99 (4th ed. 2014)). Significantly,
the Board has long held that a determination in a prior
representation proceeding does not have preclusive effect
in a subsequent representation proceeding. See, e.g.,
Film & Dubbing Productions, Inc., 181 NLRB 583, 583
fn. 1 (1970) (previous determination that translators were
independent contractors when employed by predecessor
employer did not preclude reconsideration of their status
in subsequent representation proceeding); Cement
Transport, Inc., 162 NLRB 1261, 1266 fn. 11 (1967)
(previous determination that certain leased-vehicle driv-
ers were independent contractors did not preclude recon-
sideration of their status in subsequent representation
proceeding).2 See also Thalhimer Brothers, Inc., 93
NLRB 726 (1951).
The Employer has raised res judicata as an affirmative
defense to the petition, relying on a unit clarification de-

2 The majority contends that neither Film & Dubbing nor Cement
Transport demonstrates that a prior determination of employee status
does not have preclusive effect in a subsequent representation proceed-
ing. In Film & Dubbing, however, the Board plainly stated that a pre-
vious determination of employee status did not preclude the Board
“from again considering the status of these individuals as it may appear
from the present record.” Film & Dubbing, supra at 583 fn. 1. Contra-
ry to the suggestion of my colleagues, the Board’s decision makes no
reference to any change in duties or responsibilities since the prior
determination. Indeed, the only “new circumstance” mentioned in that
decision is the identity of the employer.
In Cement Transport, the Board held that a prior determination, that
certain leased-vehicle drivers were independent contractors, did not
preclude litigation of the same issue in that representation proceeding.
Contrary to the suggestion of my colleagues, the Board’s decision was
not based on an intervening change in the Board’s standard for deter-
mining independent-contractor status. Rather, the Board found that the
prior determination took an unduly limited view of certain factors that
were present in both proceedings, instead of appropriately evaluating
the totality of the facts. See Cement Transport, supra at 1266 fn. 11.
WOLF CREEK NUCLEAR OPERATING CORP. 5
termination that is almost 17 years old. As the party rais-
ing res judicata as an affirmative defense, the Employer
bears the burden of proving that its defense is justified.
See generally Fallon-Williams, Inc., 336 NLRB 602, 604
(2001); Marydale Products Co., Inc., 133 NLRB 1232,
1235 fn. 8 (1961) (“It is well settled that the burden of
proving an affirmative defense is on the party asserting
it.”), enfd. 311 F.2d 890 (5th Cir. 1963), cert. denied 375
U.S. 817 (1963). “The Restatement of Judgments notes
that the development of new material facts can mean that
a new case and an otherwise similar previous case do not
present the same claim.” Whole Woman’s Health v. Hel-
lerstedt, 136 S.Ct. 2292, 2305 (2016).3
Here, the Employer has failed to establish its affirma-
tive defense. The Regional Director’s determination that
buyers are employees rests on a detailed description of
their current functions in the procurement process where
they utilize a complex computer system titled EMPAC.
This stands in stark contrast to the Acting Regional Di-
rector’s 2000 unit-clarification decision that makes no
mention of EMPAC or indeed any other computer sys-
tem that buyers may have used to solicit and evaluate
bids from vendors. Rather, in describing the bid-
evaluation process, the Acting Regional Director’s 2000
decision stated:
Upon receiving the bids, the Buyer performs a com-
mercial evaluation to determine the most beneficial bid
based on price, delivery, performance schedule, pay-
ment terms, warranties, exceptions, etc. … With the aid
of a bid evaluation template, the Buyer is able to list all
of the pertinent bid attributes side-by-side and evaluates
the best option.
Despite the clear differences between the Acting Re-
gional Director’s 2000 findings and the Regional Direc-
tor’s 2016 findings, the Employer nonetheless claims that
the Regional Director erred because there was evidence
in this proceeding that buyers used the EMPAC system
as early as 1998. However, the sum total of the Employ-
er’s evidence on this point was a 2016 screenshot from
its procurement system, regarding an item the Employer
purchased in 1998. At most, this evidence purports to
show that in 1998 the Employer used EMPAC to store
and retrieve information pertaining to items it purchased
from vendors and maintained in its inventory. It does not
show that in 2000 the buyers used EMPAC to generate a
comparative bid analysis before making a purchase, as

3 My colleagues state that the Employer need not prove its affirma-
tive defense here, because doing so would require it to prove a nega-
tive. I disagree, as it would merely require the Employer to produce the
procurement policies and procedures showing that they are the same
today as they were in 2000.
they do today. In fact, it does not establish whether
EMPAC could even perform that function in 2000.
Significantly, the Employer does not contend that the
EMPAC system or any other aspect of its procurement
process has remained unchanged since 2000. On the
contrary, the Employer concedes changes and describes
some of them, such as the fact that in 2000, buyers used
the bid evaluation template to analyze bids, whereas they
currently use the EMPAC system to generate a compara-
tive analysis. Further, the Employer’s request for review
does not even attempt to reconcile the Regional Direc-
tor’s description of the current automated bid-evaluation
process with the apparently manual process described in
the 2000 decision. Plainly, the Employer has not sus-
tained its burden in this case, as it is apparent that the
Petitioner litigated the buyers’ employment status based
on evidence that did not exist in 2000.4 Because a de-
termination of the buyers’ current status requires an ap-
plication of governing law to a new set of facts—facts
which significantly differ from those detailed in the Act-
ing Regional Director’s 2000 decision—the Employer
failed to establish an identity of issues foreclosing reliti-
gation of the “ultimate fact” decided in the prior proceed-
ing.5 Contrary to the Employer’s contention, the Re-
gional Director’s decision to permit litigation of the em-
ployee-status issue in these circumstances is consistent
with Board precedent6 and with the doctrine of res judi-
cata.7

4 See generally General Motors Corp., 158 NLRB 1723, 1728
(1966) (rejecting contention that a previous decision precluded litiga-
tion of respondents’ contractual no-distribution rule where language at
issue, though identical to language at issue in previous proceeding, was
maintained in a contract that came into existence after the previous
proceeding) (citing Commissioner of Internal Revenue v. Sunnen, 333
U.S. 591 (1948)).
5 Contrary to the majority’s suggestion, the mere passage of time is
not the primary basis for finding that issue preclusion is not applicable
here. The Regional Director clearly identified specific changes, includ-
ing a new competitive-bidding procedure that increased from $5,000 to
$50,000 the purchase amount that would warrant buyers’ solicitation of
competitive bids. In addition, as discussed above, comparing the Act-
ing Regional Director’s description of the buyers’ duties in 2000 with
the Regional Director’s description of their present duties reveals a
material change in the buyers’ role in selecting a winning vendor in the
competitive-bidding process. The majority’s view of an absence of
changed circumstances is, therefore, without support.
6 See Heartshare Human Services of New York, Inc., 320 NLRB 1,
1 fn. 1 (1995) (denying review of regional director’s ruling limiting the
scope of hearing to evidence of changed circumstances since previous
representation proceeding).
7 See Lawlor v. National Screen Service Corp., 349 U.S. 322, 328
(1955) (previous “judgment precludes recovery on claims arising prior
to its entry” but “cannot be given the effect of extinguishing claims
which did not even then exist and which could not possibly have been
sued upon in the previous case”).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
My colleagues contend that Carry Cos. of Illinois, 310
NLRB 860 (1993), warrants a grant of review. However,
the Board in Carry Cos. of Illinois simply found that the
union, as the party asserting supervisory status under
Section 2(11) of the Act, failed to sustain its burden of
proving that the employees at issue were statutory super-
visors. Contrary to my colleagues’ suggestion, Carry
Cos. of Illinois did not establish the burden-shifting
framework they apply today, and thus their finding of a
“prima facie applicability of preclusion” is without sup-
port.8 Plainly, nothing in that case supports a finding that
a party asserting an affirmative defense need not carry its
burden of proof.9

8 Further, and contrary to my colleagues’ suggestion, Carry Cos. of
Illinois did not overrule sub silentio Film & Dubbing, Cement
Transport, or any other decision where the Board held that a prior
determination in a representation proceeding did not have preclusive
effect in a subsequent representation proceeding.
9 Similarly, my colleagues’ citation to Harvey’s Resort Hotel, 271
NLRB 306 (1984), is unavailing because the Board found there that the
respondent’s contention, that collateral estoppel precluded litigation of
its floormen’s supervisory status, was supported in the particular cir-
cumstances. In other words, the Board found that, unlike the Employer
here, the respondent sustained its burden of establishing its affirmative
defense.
Further, and contrary to the Employer’s contention,
Section 102.67(g) of the Board’s Rules and Regulations
is clearly inapplicable here. That rule only precludes
parties from relitigating representation issues “in any
related subsequent unfair labor practice proceeding.” As
such, it provides no basis for precluding the Petitioner
from litigating the employee-status issue in this represen-
tation proceeding.
Accordingly, I find that the Employer has provided no
basis for granting review of the Regional Director’s find-
ing that the buyers are employees. Contrary to my col-
leagues, I would therefore deny the Employer’s Request
for Review of the Regional Director’s Decision and Di-
rection of Election.
Dated, Washington, D.C. April 7, 2017
______________________________________
Mark Gaston Pearce, Member
NATIONAL LABOR RELATIONS BOARD