United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided January 6, 2012
No. 10-1410
SOUTHERN POWER COMPANY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 11-1003
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board
Michael D. Kaufman, Seth T. Ford, and M. Jefferson
Starling, III were on the briefs for petitioner.
John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Robert J.
Englehart, Supervisory Attorney, and Michael D. Berkheimer,
Attorney, were on the brief for respondent. Daniel A. Blitz,
Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
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PER CURIAM: Petitioner Southern Power owns the four
electricity generating plants involved in this case. Until 2008,
Southern Power staffed the four facilities by contracting with
Alabama Power at one of the plants and Georgia Power at the
three others. Both had exclusive bargaining representatives:
the International Brotherhood of Electrical Workers (IBEW)
Local 84 represented operation technicians at the Georgia
Power–operated plants; IBEW System Council U-19 on
behalf of sub-local, Local 801-1, represented the operation
technicians at the Alabama Power–operated plant. On January
25, 2008, Southern Power terminated its service agreement
with Georgia Power and Alabama Power, taking over the four
plants’ operations. Local 84 and Local 801-1 requested
recognition, contending that Southern Power qualified as a
successor employer to Georgia Power and Alabama Power.
When Southern Power refused to recognize and bargain with
the unions, each filed charges with the National Labor
Relations Board (NLRB).
After a hearing, the administrative law judge found that
Southern Power violated sections 8(a)(1) and (5) of the
National Labor Relations Act (NLRA), ordering it to
recognize and bargain with Local 84 and Local 801-1. The
ALJ also found that the three-plant bargaining unit
represented by Local 84 was inappropriate and therefore
ordered Southern Power to bargain with Local 84 in three
single-plant units. On March 20, 2009, acting with only two
sitting members, the Board issued an order affirming the
ALJ’s findings “as modified,” agreeing that Southern Power
was a successor, but finding, contrary to the ALJ, that the
Georgia Power three-plant bargaining unit was proper given
the unit’s group bargaining history. S. Power Co., 353
N.L.R.B. No. 116, 2009 WL 837873, at *2 (Mar. 20, 2009).
Southern Power petitioned for review, and we remanded the
case to the NLRB in light of New Process Steel, L.P. v.
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NLRB, 130 S. Ct. 2635 (2010), which held that an NLRB
panel must have at least three members to exercise the
Board’s authority. On November 30, 2010, a three-member
panel of the Board, after “consider[ing] the [ALJ’s] decision
and the record,” decided to “affirm the [ALJ’s] rulings,
findings, and conclusions and to adopt the recommended
Order to the extent and for the reasons stated” in the March 20
Order, which it incorporated by reference. S. Power Co., 356
N.L.R.B. No. 43, 2010 WL 4929683, at *1 (Nov. 30, 2010).
Southern Power now asks us to vacate the Board’s
November 30 Order. We lack jurisdiction to consider two of
Southern Power’s arguments, another is time-barred, and two
others fail on the merits. Accordingly, we deny Southern
Power’s petition for review and grant the Board’s cross-
application for enforcement.
Southern Power first argues that the speed with which the
Board reached its decision and the purportedly confusing
language of its order demonstrate that it “arbitrarily rushed to
judgment to affirm its improper two-member decision.” Pet’r
Br. 25. Under NLRA Section 10(e), however, we lack
jurisdiction to consider this argument because Southern
Power failed to raise it before the Board by filing a motion for
reconsideration. See 29 U.S.C. § 160(e), (f) (“[n]o objection
that has not been urged before the Board . . . shall be
considered by the court” absent “extraordinary
circumstances”); Int’l Ladies’ Garment Workers’ Union v.
Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (holding that,
pursuant to section 160(e), court “may not” consider
respondent’s objection “that it was denied procedural due
process” because respondent failed to raise the objection
before the Board by “fil[ing] a petition for reconsideration”).
For the same reason, we lack jurisdiction to consider Southern
Power’s argument that the Order will increase the risk that
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Southern Power will violate a settlement agreement between
its parent company and the Federal Energy Regulatory
Commission.
Next, Southern Power argues that the Board erred in
rejecting its argument that Georgia Power and Alabama
Power’s original recognition of the unions was unlawful.
Because nearly ten years have passed since the unions were
recognized, NLRA Section 10(b)—requiring any challenges
to the initial majority status of a union to be made within six
months of its recognition—bars this claim. See 29 U.S.C.
§ 160(b) (“no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the
filing of the charge with the Board”); Raymond F. Kravis Ctr.
for the Performing Arts, Inc. v. NLRB, 550 F.3d 1183, 189–90
(D.C. Cir. 2008) (rejecting defense based on the impropriety
of union’s original majority status because “[t]he six-month
time period for challenging Local 623’s alleged lack of
majority support in 1992 and 1998 passed long before
[employer] first raised this challenge”).
Southern Power next challenges the Board’s
successorship finding, arguing that no substantial continuity
of enterprise existed between it and either Georgia Power or
Alabama Power. Under the NLRA, a successor employer
must recognize and bargain with its predecessor’s union. Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41
(1987). An employer is a successor where “the majority of its
employees were employed by its predecessor” and there is
“substantial continuity” between the enterprises. Id. at 41, 43.
In deciding whether substantial continuity exists, the Board
examines
whether the business of both employers is essentially
the same; whether the employees of the new
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company are doing the same jobs in the same
working conditions under the same supervisors; and
whether the new entity has the same production
process, produces the same products, and basically
has the same body of customers.
Id. at 43. The Board assesses all of these factors “from the
perspective of the employees involved.” Cmty. Hosps. of
Cent. Cal. v. NLRB, 335 F.3d 1079, 1083 (D.C. Cir. 2003).
The substantial continuity inquiry is fact-based, and we must
uphold the Board’s factual findings if supported by substantial
evidence. Id. at 1082–83. That standard is amply satisfied
here. Southern Power has stipulated to most of the relevant
factors identified by the Supreme Court for evaluating
substantial continuity: that former Alabama Power and
Georgia Power employees at each of the four plants
constituted a majority—indeed, all—of its work force when it
assumed operation, and that these employees continued,
without hiatus, doing the same job under the same managers
with only minor changes to the terms and conditions of their
employment.
None of Southern Power’s objections undercut the
Board’s factual findings. First, Southern Power contends that
it “did not purchase or acquire stock, assets or equipment of
Alabama Power or Georgia Power.” Pet’r Br. 38. This is, of
course, true: Southern Power acquired no assets because it
already owned them. Its relationship to Georgia Power and
Alabama Power is thus even closer than that of a new
company that purchases its predecessor’s assets. Second,
Southern Power contends that it “is fundamentally different
from Alabama Power and Georgia Power in both size and
operation.” Id. at 40. Yet differences in company size have
little impact on continuity within a particular plant and thus
on whether the employees “view their job situations as
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essentially unaltered.” Fall River, 482 U.S. at 43. As the
Board found, and as the record amply demonstrates, the
working conditions in the plants and the circumstances from
“the employee’s perspective,” id., remained virtually identical
after Southern Power’s takeover. Third, Southern Power
contends that the record lacks adequate evidence that the
employees expected continued representation because “the
employees knew that Southern Power was not unionized.”
Pet’r Br. 44. But this is of no moment: “The fact that the
employees took ‘non-union’ jobs does not establish that they
no longer wanted union representation.” Siemens Bldg.
Techs., Inc., 345 N.L.R.B. 1108, 1109 (2005). Substantial
continuity itself, rather than the successor’s union status or the
impossibility of procuring a different union job, creates
legitimate expectations of continued representation. See Fall
River, 482 U.S. at 39–40 (“If the employees find themselves
in a new enterprise that substantially resembles the old, but
without their chosen bargaining representative, they may well
feel that their choice of a union is subject to the vagaries of an
enterprise’s transformation. This feeling is not conducive to
industrial peace.”).
Finally, Southern Power argues that to the extent we find
in the Board’s favor, we should deem a single-plant
bargaining unit, rather than the three-plant unit the Board
approved, “the most appropriate unit” for the plants
previously staffed by Georgia Power. Pet’r Br. 44. We,
however, owe great deference to the Board’s selection of
bargaining units, and the Board “need only select an
appropriate unit, not the most appropriate unit.” Dean
Transp., Inc. v. NLRB, 551 F.3d 1055, 1063 (D.C. Cir. 2009)
(internal quotation marks omitted). Here, the same collective-
bargaining agreement covered employees at all three plants
from the time their positions were created. The Board
appropriately attached significant weight to this group
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bargaining history, and Southern Power presented no
“compelling circumstances” to overcome the resulting
presumption of appropriateness. See Cmty. Hosps., 335 F.3d
at 1085 (internal quotation marks omitted).
For the foregoing reasons, we deny the petition for
review and grant the Board’s cross-application for
enforcement.
So ordered.