Wolf Creek Nuclear Operating Corporation, (2017)

Docket Number:14-RC-168543

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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 International Brotherhood of Electrical Workers, Local 225, Petitioner. Case 14–RC–168543

April 7, 2017



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 appropriate 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 accordingly 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 applying the doctrine of res judicata, based on a prior decision 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 record, the Regional Director clearly erred in determining that the buyers are not managerial employees. The Petitioner 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 explained 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, without prejudice.

In his decision, the Regional Director rejected the applicability 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 finding 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 certiorari 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 employees[,] 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 omitted). 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 party—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 Illinois, 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 review. It does not matter that the Board itself did not address the issue.

Under general preclusion doctrine, a judgment is considered 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 buyers—one that has not been appealed and that resolves the disputed issues in a manner that is binding upon the parties—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. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.


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 previously 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 potentially preclusive in a subsequent representation proceeding involving the same parties and the same issue, although the Board’s Rule and Regulations do not expressly contemplate that scenario. The Board’s administrative interest in finality—resolving questions concerning representation quickly and definitively—is substantially the same in either case.2

It follows, then, that the 2000 decision may have preclusive 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” exception to preclusion not established because “the Petitioner has failed to produce” evidence of such); Harvey’s Resort 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 final 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...

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