your honor's my name is kelly baron i represent the respondent wolf creek nucular operating corporation the responded operates a nuclear power plant in burlington kansas before this court is a relatively narrow issue the laws basically agreed on the application of the law is in dispute at this power plant there or buyers they purchased everything that this uses with the exception of nucular fuel and there is no question that these buyers were originally considered managerial employees in two thousand there was a board  over whether or not the buyer should be included be considered normal rank and file employees or whether they should be considered managerial employees of the national labor relations board at the regional level current sixty but sixteen years the process began again and i think you can argue that it's actually eighteen as a process has taken some time does it does it matter how much times parents know can these things be revisited circumstances well yes however that is the that burden at the lower level is on the on the board not on the not on the employer response but our review judicata the board other at the regional level held hearings at the hearings testimony obviously was taken in and i would draw your attention at least to the respondents initial brief pages thirty to thirty seven in that hearing thirty four steps of the buyer's actual work process were testified about at all thirty the buyer's activities in two thousand and sixteen were exactly the same as the buyer's activities in two thousand despite this the regional director report about it they got sixteen years the way that we conduct our everyday lives this change about the frequency with which they performed a number of the change drastically yes but that does not change either the there there is no dispute that is accurate and i think the best way to look at the three changes that were cited which is the use of the computer system reduce competitive bidding and to change the alleged change in the buyers role and evaluating because i think a better way to look at those might be to look at each of them in the context of a turning buyers activities we're not quite as familiar with attorneys activities we are those of us who have been practicing law long time before computers realize how this practice has changed we used to go in the library we went  to find died just select cases bring stacks of books back to the table review the books decide which cases we wanted we didn't have coffee or wrote down what we needed in the lab today that's all the put in at the experts if it's in the arena that you are not totally familiar with does not change your responsibility as an attorney does not change these individuals responsibility as buyers as long as they root maintain responsibility and th discretion to exercise that responsibility and they they do maintain that if we were to disagree with you and think there was a material change do you agree that the firestorm were not managerial and i think if you would say there's a material change one should go back and review the entire record because we're talking about three points when in fact there are thirty eight seventeen twenty five twenty six and there's a whole lot of things you list that that are about other people making the initial decision to purchase and the purchas determined by someone other than the buyer correct correct but what's significant there is those are the very fact and find means that we're relied upon in two thousand to reach a conclusion that these are what do you point to in saying that the buyers are in fact managerial and what i point to is the fact that their discretion has not been changed in any market way their responsibility has not been changed in any market way and the processes that they go through are as a sexually the same as a processes they went through in the year two thousand they change in manner not in form a difference in numbers of single source flyers over the last eighteen years the record indicates that there's been a decline and single source the record that the record does not indicate what number of fingers singles force purchase has occurred in two thousand the record indicate though that in two thousand a sixteen roughly ten percent of purchases are on a multibillion supplier to ninety percent or single single source now with a single source the only question is time of delivery i know it with a single source you have price ok price and time of delivery you have terms of payment you have warranties you have miscellaneous other contract responsibilities you have credit cards you have shipping type time and cost carrier there's multiple el purchase a building or something else has a pro forma document that they will go back and rely on and work off of but there are all these other factors set by the time the buyer makes the buyer's decisions based soley on price and tiny i believe that the buyer negotiates these other items as well and there is evidence that the buyer has in fact not always follow that policy or follow the suggestions they have the discretion to move excuse me the buyers save the corporation roughly three hundred thirty thousand dollars through their negotiations in two thousand how many competitive bids were there percentage you disagree that the reduction in purchases subject competitive bidding was ninety percent i would disagree with that isn't that what was found i think they found that ten percent was i don't think they found that it was one hundred percent previously i don't believe so you agree that ninety percent now is not competitive that is correct motion to dismiss and on page twenty of that decision you have the regional director in that case saying in limited situations there where they don't competitively bed so weak that the only information we have is that in two thousand the characterization managerial employees or employees and certainly wrapped up in that analysis is what led to the material change decision because you're looking at the duties so wrapped up in that analysis is all of the changes that came about when lion's agreements with third party vendor and set the terms of sale in those and identifies preferred tenders so not only do you have a single source meaning you have no alternative who to go to and again that the technology has just simply changed where they go to look for the information i respectfully disagree that the lawyer and that's a lawyer analogy makes any sense as it relates to the buyers here it's not simply that buyers don't have to consult manuals anymore it's they don't have to do anything other than select the single buyer that is available for the purchase so let me let me stop you for a minute so the things you were just talking about the that the decision you were just sort of repeating what was in the decision that we're review single source contracts what what's the cause of the single source contract pretty much a natural occurrence because the equipment is getting old and the market isn't supporting multiple vendors i believe so i don't know that th record to be clear to the individuals who testified there were the four buyers i think that testified and i don't know that they were i don't know that they're in a position to say specifically why the employer has put our by the employer has now more single  source contract or single source suppliers in alliance agreements than he did before but you have to the money from those people yes some of them testified that it's like you know there are thirty year old plant now and they don't have anywhere else to go so i don't know that the reason are as opposed to it's uncontested that it is their right and so does the fact that that's decreased through through no action of the company does that make a difference i don't believe that that matters no the board is going to look at whether the buyers irrespective of why a change has come about or why a particular employee doesn't exercise independent discretion judgment the question is do day so  vendors or the aging of plants has resulted in the investor ration of that independent discretion judgment doesn't affect the ultimate conclusion which is they don't exercise it well you mentioned did i understand you correctly that yeah in that respect i noticed that the old them vote among the buyers on the union vote was three one right was there a conflict in the testimony the two thousand and fifteen the all the evidence will say that there is no price negotiation by the buyer with the seller i believe that's accurate yes i don't recall politics all for the testified but let's back up at the beginning of the process when we're talking whether there's a material change the burden is on the union when we're talking about excluding somebody from the act to the extent that there are  holes in the evidence that is on the employer the employer has the burden to show that they're excluded so if they're going to hang hang their heads that these employees are manager because they negotiate prices and good prices for good to prove that there was a difference between twenty sixteen and two thousand and then to do that we'd have to know what they presented in two thousand but still absolutely there's a non onerous burden on the part of the union absolutely at the beginning part of th of competitive bidding so once they are satisfied and gotten over that non onerous burden to relook and that all of that happens now if you really look at the decision it's not the union had barely any birdman now all of a sudden these employees are going to no longer be considered manager it's just getting over the hurdle the low hurdle of showing we can breed is it over sixteen or seventeen years things have changed we shall not that we can revisit this issue so absolutely union had a burden at the beginning but then once you are in the i would like to address the question the judge murphy asked which is was there a conflict in testimony and the answer is yes if you go to page thirty eight of the respondents initial briefs you will find that a baby sailor testified by or betty he was a buyer in two thousand and testified that the process of being a buyer is the same no matter what system you're in and that although impacts gave u automation what we did to our job to what we do that we did to our job didn't change where any of the other three buyers present in two thousand i do not know the but i know that testimony was that specific question to which this particular by responded was asked of the other three i do not know that either would you agree that if if there i conflict on that issue in the evidence and between the three other witnesses in the witness you cited then it was up to the decide judgment i would agree with that however i am quite sure that there is no evidence in the record to the contrary i would also draw your attention to page fifty one of the respondents brief in which they discussed the errors or regional director made when ignoring undisputed testimony finding that the  the record and it's also in the record that will create relied on buyers him put an opinion when formulate in determining an increase in the monetary limitations on items to be competitively bid from five thousand  enough to have a material change from your understanding of the case was that the case that was put on to the board or was it primarily a change in technology case it was primarily a change  technology case these other findings came out i don't want to call them left field but i think they were unexpected because i have talked to the consul that friday that was involved in the hearing