Nuclear Safety Program Instructors Are Employees Not Managers: NLRB | Practical Law

Nuclear Safety Program Instructors Are Employees Not Managers: NLRB | Practical Law

In Wolf Creek Nuclear Operating Corporation, the National Labor Relations Board (NLRB) held that a group of nuclear safety program instructors were not managerial employees and were therefore entitled to coverage under the National Labor Relations Act (NLRA).

Nuclear Safety Program Instructors Are Employees Not Managers: NLRB

Practical Law Legal Update w-003-3532 (Approx. 6 pages)

Nuclear Safety Program Instructors Are Employees Not Managers: NLRB

by Practical Law Labor & Employment
Published on 09 Sep 2016 • USA (National/Federal)
In Wolf Creek Nuclear Operating Corporation, the National Labor Relations Board (NLRB) held that a group of nuclear safety program instructors were not managerial employees and were therefore entitled to coverage under the National Labor Relations Act (NLRA).
On August 26, 2016, in Wolf Creek Nuclear Operating Corporation, the panel (Board) heading the NLRB's judicial functions held than an employer failed to establish that a group of nuclear safety program instructors (SIs) were managerial employees under the NLRA. The Board reasoned that relevant Nuclear Regulatory Commission (NRC) guidelines severely restricted the instructors' discretion in performing their job duties. (364 N.L.R.B. No. 111 (Aug. 26, 2016).)

Background

The employer operates a nuclear power facility in Kansas. At the facility, a union represents a bargaining unit of security officers. The union sought a self-determination election for a group of SIs employed at the facility. On October 14, 2015, an NLRB regional director denied the union's request for an election. The regional director concluded that the SIs were managerial employees excluded from coverage under the NLRA. The union requested review of the regional director's decision.

Outcome

A majority of the Board (Chairman Pearce and Member Hirozawa) reversed the regional director's decision and held that the SIs were not managerial employees under the NLRA. The majority noted that:
The majority held that the NRC Regulatory Guide 5.75 severely limited the SIs' discretion in performing their job duties, reasoning that their functions were more similar to "in-service education assistants" deemed employees in Barton Hepburn Hospital than the putative managerial employees in Miller Electric, who, like the instructors here, developed training programs for statutory employees and supervisors.
The majority, without expressly holding that the regional director departed from Board precedent or was clearly erroneous on a factual issue, made supplemental factual findings supporting the conclusion that SIs were non-managerial employees. The majority reasoned that:
  • The SIs exercise limited discretion in developing lesson plans and conducting training of security officers and their supervisors because:
    • NRC Regulatory Guide 5.75 provides "extensive instructions" about lesson plans, including a comprehensive list of tasks that security officers must perform and training elements for each of these tasks;
    • SIs testified that they do not have much control over lesson plans; and
    • although there was evidence that SIs were permitted to expand on NRC guidelines and customize instructions based on the employer's practices, facility environment, and equipment, and the employer's security training supervisor offered uncontradicted testimony that SIs went above and beyond the lists attached to NLRC Regulatory Guide 5.75, the employer did not introduce evidence of specific incidents where SIs did so.
  • The SIs exercise limited discretion in creating and administering exams because although SIs write exam questions, a supervisor must approve them. The employer did not provide evidence about how little the questions are reviewed or revised. Once the questions are approved, they are entered into a database. Exam questions are randomly selected from the database. SIs review the selected questions only to ensure that they cover the elements required by NRC Regulatory Guide 5.75.
  • The SIs exercise limited discretion in conducting weapons training because:
    • NRC Regulatory Guide 5.75 contains "extensive instructions" about weapons training; and
    • security officers pass or fail qualification tests based on the measurements of a laser system.
  • The SIs exercise limited discretion in designing and conducting drills and exercises because:
    • NRC Regulatory Guide 5.75 also contains "extensive instructions" about drills and exercises;
    • SIs must take the employer's defense plan into account when designing drills and exercises; and
    • SIs have only limited discretion when critiquing security officers' performance.
  • Although SIs are custodians of cabinets containing the employer's defense plan and supply the documents to employees who have a need to know, the employer did not introduce evidence about SIs exercising independent discretion to determine if an employee had a need to know.
In dissent, Member Miscimarra asserted, among other things, that:
  • The petitioning union did not satisfy the burden necessary for the Board to reverse the regional director, namely, that the regional director's determination either:
  • The majority's opinion understated the importance of maintaining security at nuclear power facilities and how security training that the SIs developed and provided to both security officers and their supervisors was aligned with management's national security interests.
  • The majority erred by dismissing how much discretion the SIs had to customize the "generalized" NRC guidelines for the employer's practices, facility, and defense plan.
  • The SIs exercise considerable discretion in gleaning prospective training components from the NRC guidelines appropriate for their facility and employer's needs when:
    • preparing lesson plans; and
    • developing training exercises.
  • The SIs' interests are more closely aligned with management's than with bargaining unit employees.

Practical Implications

In recent years the Board has interpreted "employee" broadly and exceptions for supervisory employees, independent contractors, and now managerial employees ever more narrowly (for example, see Legal Updates, NLRB Clarifies Accountability Standard for "Responsible" Direction, Finding Tugboat Captains Not Supervisors Under NLRA and NLRB Finds FedEx Home Delivery Drivers Employees under New Independent Contractor Test, Rejects DC Circuit Independent Contractor Finding on Same Facts).
Paralleling the Board's demand for evidence of exercised authority in supervisory status cases, the Board demands evidence of the purported managerial employee exercising discretion in the employer's interests. Here, uncontradicted testimony and documentary evidence that SIs possessed discretion to select among prospective training plans from guidelines and to develop training plans from outside the guidelines were, in the Board's view, immaterial. It demanded evidence showing specifically how SIs exercised that discretion. Likewise, uncontradicted testimony that the employer entrusted the SIs to draft safety training plans and examinations requiring little or no review by their supervisors was insufficient. The Board majority demanded evidence that supervisors did not revise or insignificantly revised the SIs' work product.
Finally, it was the petitioning union's burden to prove that the regional director disregarded Board precedent (at most the majority thought other Board precedent was more apposite) or clearly erred in a material factual finding, However, the Board effectively conducted a de novo review and tested whether the employer met its burden of showing the SIs were managerial irrespective of the regional director's legal analysis and factual findings. Employers that assert that employees are managerial should ensure the record is replete with examples of discretion those employees exercised in the employer's interest and how their work was subject to little or no supervision when asserting employees are managerial. It matters little to the Board that a hearing officer and a regional director accept their evidence and arguments about managerial status.