Wolf Creek Nuclear Operating Corporation

National Labor Relations Board - Board Decisions

Mar 13, 2018

366 NLRB No. 30 (N.L.R.B. 2018)

366 NLRB No. 30
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. Case 14–CA–181053
March 13, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on July 28, 2016,
by International Brotherhood of Electrical Workers, Lo-
cal 225 (the Union), the General Counsel issued the
complaint on November 28, 2017, alleging that Wolf
Creek Nuclear Operating Corporation (the Respondent or
Wolf Creek) violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to recognize and bargain
with it and to furnish relevant information following the
Union’s certification in Case 14–RC–168543.1 (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint and asserting affirmative defenses.
On December 20, 2017, the General Counsel filed a
Motion for Summary Judgment. On December 21, 2017,
the Board issued an order transferring the proceeding to

1 On February 16, 2016, the Regional Director in Case 14–RC-
168543 issued a decision and direction of election in the petitioned-for
unit. The Regional Director found that a May 4, 2000 unit-clarification
decision in Case 17-UC-210—in which an Acting Regional Director
found that Wolf Creek’s Buyers I, II, and III were managers—did not
preclude revisiting the managerial status of individuals in these classifi-
cations in Case 14–RC–168543. The Regional Director in Case 14–
RC–168543 further found that, on the record in that case, Wolf Creek
had failed to establish that individuals working in the positions of Buy-
er I, Buyer II, Buyer III or Lead Buyer are managers. On April 7, 2017,
a Board majority granted in part Wolf Creek’s request for review of the
Regional Director’s decision in Case 14–RC–168543 and remanded the
case to the Regional Director to more fully consider the preclusive
effect, if any, of the 2000 unit-clarification decision. 365 NLRB No. 55
(2017). On May 9, 2017, after having reopened the record, the Region-
al Director issued a supplemental decision reaffirming the conclusions
that the doctrine of res judicata did not preclude consideration of the
Buyers’ managerial status and that the record failed to show that they
are managers. By unpublished order dated October 27, 2017, the Board
denied Wolf Creek’s request for review of the Regional Director’s
supplemental decision.
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that
the Board may not revisit the Acting Regional Director’s
2000 determination in Case 17-UC-210 that the Buyer I,
Buyer II, and Buyer III positions were managerial and, in
any event, that the record evidence in Case 14–RC–
168543 demonstrated that individuals serving in those
positions and in the Lead Buyer position are managers.
As affirmative defenses, Wolf Creek asserts that the
complaint should be dismissed because (i) its allegations
are barred by res judicata and/or collateral estoppel, (ii)
the individuals in the bargaining unit are managers, (iii)
the bargaining unit is not appropriate, (iv) the complaint
fails to state a claim upon which relief can be granted,
and (v) Wolf Creek has acted lawfully and in good faith
at all times.2
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to the Union’s request for infor-
mation. The complaint alleges, and the Respondent ad-
mits, that about February 29, 2016, the Union requested

2 The Respondent’s first three affirmative defenses simply recapitu-
late the arguments raised by the Respondent and rejected by the Board
in Case 14–RC–168543. As to the fourth affirmative defense, the com-
plaint does indeed state claims upon which relief can be granted insofar
as it alleges that the Respondent violated the Act by refusing to meet
and bargain with the Union and by refusing to furnish relevant request-
ed information. Finally, the Respondent’s good faith is not a valid
affirmative defense to the allegation that the Respondent unlawfully
refused to recognize and bargain with the Union, Levitz Furniture Co.
of the Pacific, 333 NLRB 717 (2001), or that it unlawfully refused to
furnish relevant requested information, Brooklyn Union Gas Co., 220
NLRB 189, 191 (1975).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by email that the Respondent furnish it with the follow-
ing information:
1. Current pay information for the 4 existing Buyers
2. Salary information for the last 3 years for all Buyers
including the recently retired Lead Buyer
3. Classification seniority information, including past
titles for the existing buyers
4. Site Seniority information for all the buyers
5. Return of any Employee at will letters in the Current
Employee
6. Par Bonus amounts for the last 3 years for all Buyers
It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request. See, e.g.,
Metro Health Foundation, Inc., 338 NLRB 802, 803
(2003). The Respondent has not asserted any basis for
rebutting the presumptive relevance of the requested in-
formation. Rather, the Respondent contends that the
Union was improperly certified, a contention that we
have rejected. We find that the Respondent unlawfully
refused to furnish the information sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Burling-
ton, Kansas, and has been engaged in the production,
transmission, and retail sale of electricity.
In conducting its operations during the 12-month period
ending October 31, 2017, the Respondent purchased and
received at its Burlington, Kansas facility goods and ser-
vices valued in excess of $50,000 directly from points out-
side the State of Kansas.
During that same time period, the Respondent provided
goods and services valued in excess of $50,000 to States
other than the State of Kansas.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

3 The Respondent’s requests that the complaint be dismissed and the
certification of representative revoked are therefore denied.
Chairman Kaplan did not participate in the underlying representation
case but he agrees that the Respondent has not presented any new mat-
ters that are properly litigable in this unfair labor practice proceeding.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held February
24, 2016, the Union was certified on March 8, 2016, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time Buyers I, II, III and
Lead Buyer employed by the Employer at its facility
near Burlington, Kansas, EXCLUDING all office cler-
ical employees, professional employees, managerial
employees, guards and supervisors as defined by the
Act, and all other employees.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
About February 29, 2016, the Union, by telephone, re-
quested that the Respondent recognize and bargain with
it as the exclusive collective-bargaining representative of
the unit employees. The Respondent has failed and re-
fused to meet and bargain with the Union.
About February 29, 2016, the Union requested by
email that the Respondent furnish it with the information
set forth above, which is necessary for, and relevant to,
the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit. The Re-
spondent has failed and refused to furnish the Union with
the relevant information.
We find that these failures and refusals constitute an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit, and by
failing and refusing to provide the Union with the infor-
mation it requested, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from such conduct. In addition, we
shall order the Respondent to bargain on request with the
Union and, if an understanding is reached, to embody the
understanding in a signed agreement. We shall also or-
WOLF CREEK NUCLEAR OPERATING CORP. 3
der the Respondent to furnish the Union the information
that it requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Wolf Creek Nuclear Operating Corporation,
Burlington, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers, Local
225 (the Union) as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the exclusive collective-
bargaining representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time Buyers I, II, III and
Lead Buyer employed by the Employer at its facility
near Burlington, Kansas, EXCLUDING all office cler-
ical employees, professional employees, managerial
employees, guards and supervisors as defined by the
Act, and all other employees.
(b) Furnish to the Union in a timely manner the in-
formation requested on or about February 29, 2016.
(c) Within 14 days after service by the Region, post at
their facilities in Burlington, Kansas, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
on forms provided by the Regional Director for Region
14, after being signed by the Respondent’s authorized
representatives, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former at any time since February
29, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 13, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
Local 225 (the Union) as the exclusive collective-
bargaining representative of our employees in the bar-
gaining unit.
WE WILL NOT fail and refuse to furnish the Union with
information that is relevant and necessary to its role as
the exclusive collective-bargaining representative of our
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
All full-time and regular part-time Buyers I, II, III and
Lead Buyer employed by us at our facility near Bur-
lington, Kansas, EXCLUDING all office clerical em-
ployees, professional employees, managerial employ-
ees, guards and supervisors as defined by the Act, and
all other employees.
WE WILL furnish to the Union in a timely manner the
information requested on February 29, 2016.
WOLF CREEK NUCLEAR OPERATING CORP.
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-181053 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.