[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-8454-EE APRIL 17, 2007
THOMAS K. KAHN
CLERK
GEORGIA POWER COMPANY,
Petitioner-Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
______________________________________________________
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, CLC Local No. 84,
Intervenor.
--------------------------
On Application for Enforcement of an Order
of the National Labor Relations Board
--------------------------
BEFORE: MARCUS and HILL, Circuit Judges, and ADAMS,* District Judge.
MARCUS, Circuit Judge:
__________________________________________________________________
* Honorable Henry Lee Adams, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.
Now pending before the Court is a Petition for Adjudication of Civil Contempt,
in which the National Labor Relations Board (“Board”) alleges that Georgia Power
Company (“Georgia Power”) is in contempt of this Court’s March 8, 1999 Judgment
in this matter. After reviewing the Board’s contempt petition, we directed Georgia
Power to file an Answer and directed the Board to provide this Court with copies of
any documentation which it believed supported the allegations of its Petition for Civil
Contempt. On December 12, 2006, we issued an ORDER TO SHOW CAUSE why
Georgia Power Company should not be held in civil contempt of this Court’s
judgment in Georgia Power Co. v. NLRB, 176 F.3d 494 (11th Cir. 1999) (table), aff’g
& enf’g, Georgia Power Co., 325 N.L.R.B. 420 (1998). After reviewing the materials
submitted by the parties, we DENY the Petition for Adjudication of Civil Contempt.
This action arises from an unfair-labor-practice complaint filed with the Board
alleging that Georgia Power unilaterally changed working conditions for employees
represented by the International Brotherhood of Electrical Workers Local 84,
AFL-CIO-CLC (“Union”). More specifically, the Union claimed that Georgia Power
unilaterally, that is, without collective bargaining, modified the Other
Post-Retirement Benefits (“OPRB”), including future retirees’ life and medical
benefits, of current employees, in violation of Sections 1 and 8(a)(5) of the National
Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, 158(a)(5). The Board found that
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Georgia Power’s unilateral decision to limit the company-paid portion of the
premiums for its future retirees’ OPRB, in the form of medical and life insurance
benefits, violated Sections 1 and 8(a)(5) of the NLRA. As a result, Georgia Power
was directed, inter alia, to cease and desist from making unilateral changes to its
bargaining unit employees’ OPRB without providing notice of the proposed changes
and an adequate opportunity to the Union to bargain about those changes, as well as
from interfering with, restraining, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the NLRA. Specifically, the Board’s order
directed that Georgia Power shall:
1. Cease and desist from
(a) Making unilateral changes in bargaining unit employees’ OPRB
without providing notice of the proposed changes and adequate
opportunity for the Union to bargain about those changes.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of 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 collectively with International Brotherhood of
Electrical Workers Local 84, AFL-CIO-CLC as exclusive representative
of the employees in the appropriate bargaining unit described in article
II, section 2 of their collective-bargaining agreement (memorandum of
agreement) and, if an understanding is reached, embody that
understanding in a signed contract.
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(b) Restore OPRB to the pre-April 21, 1995, level.
Georgia Power Co., 325 N.L.R.B. at 427. On March 8, 1999, this Court entered a
decree affirming and enforcing the Board’s order. Georgia Power Co. v. NLRB, 176
F.3d 494 (11th Cir. 1999) (table).
Following entry of our judgment in 1999, from 2000 to 2001, Georgia Power
and the Union engaged in good-faith negotiations, the scope of which included
discussion of the bargaining-unit employees’ OPRB. The parties reached an impasse
during their 2000-2001 negotiations, after which Georgia Power implemented its
“last, best and final offer” based on the company’s interpretation of “the impasse
rule,” which provides that “following good-faith negotiations, . . . a party generally
may take unilateral action with respect to a mandatory subject of bargaining over
which impasse has been reached.” NLRB v. McClatchy Newspapers, Inc., 964 F.2d
1153, 1155 (D.C. Cir. 1997) (per curiam) (Edwards, J., concurring); see also NLRB
v. Bancroft Mfg. Co., 635 F.2d 492, 494 (5th Cir. Unit A Jan. 1981) (“‘Impasse’
within the meaning of the federal labor laws presupposes a reasonable effort at
good-faith bargaining which, despite noble intentions, does not conclude in an
agreement between the parties.” (quotation marks omitted)).1 The Union filed no
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all cases decided by the Fifth Circuit, including both Units A and B, prior to
October 1, 1981.
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unfair-labor-practice complaint challenging the foregoing implementation pursuant
to Georgia Power’s interpretation of the impasse rule.
Thereafter, on September 30, 2004, Georgia Power distributed a memorandum
to its employees in which it announced two changes to current employees’ OPRB: (1)
a change in the method for coordination of benefits between the Georgia Power
Medical Plan and other insurers, and (2) the implementation of a premium
contribution for retirees after they turned 65. Those changes became effective on
January 1, 2005. Along with that memorandum, Georgia Power provided a document
entitled “Highlights of Changes to the Southern Company Services, Inc. Healthcare
Plan.” In addition to describing the changes to the Medical Plan, the memorandum
stated that “Future changes to retiree health care premiums for current active
employees may be announced at the discretion of the Plan Administrator.” The
Union filed no unfair-labor-practice complaint challenging the foregoing changes.
By letter dated October 21, 2004, the Union advised Georgia Power that it
opposed the proposed changes to the Medical Plan and indicated its view that the
issue was properly a subject of bargaining and must be negotiated with the Union.
In an April 6, 2005 letter in response, Georgia Power advised the Union that:
(1) because the proposed changes affected only retirement benefits, they were not
subject to negotiations with the Union; (2) even if the changes were subject to
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negotiations, the Union had already accepted those changes by not objecting in 2002,
when the changes were implemented, or in 2003, when the Union agreed to allow its
members to participate in the Blue Cross/Blue Shield medical plan, or both; and (3)
after the parties reached an impasse during their 2000-2001 good-faith negotiations,
the company implemented its “last, best and final offer.”
Over a year later, on July 17, 2006, the Board filed this Petition for
Adjudication of Civil Contempt. The Board asks that Georgia Power be found in
contempt of this Court’s March 8, 1999 Judgment, and that Georgia Power be ordered
to purge itself of the contempt by, among other things, rescinding the 2004 changes,
making whole employees who have been affected by the changes, posting notices of
the contempt finding, and payment of the Board’s costs and expenses. The Board
also says this Court should direct Georgia Power to make immediate payment of
$50,000 into the District Court for the Northern District of Georgia’s registry as a
“conditional fine” to be remitted upon performance of the other proposed purging
actions.
We will make a finding of civil contempt -- that is, willful disregard of the
authority of this Court -- only upon a showing that the alleged contempt is clear and
convincing. See McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000); NLRB
v. Crockett-Bradley, Inc., 598 F.2d 971, 975 (5th Cir. 1979). “This burden of proof
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is more exacting than the ‘preponderance of the evidence’ standard but, unlike
criminal contempt, does not require proof beyond a reasonable doubt.” Jordan v.
Wilson, 851 F.2d 1290, 1292 (11th Cir. 1988) (per curiam). The clear and convincing
evidence must establish that: (1) the allegedly violated order was valid and lawful;
(2) the order was clear and unambiguous; and (3) the alleged violator had the ability
to comply with the order. McGregor, 206 F.3d at 1383 (emphasis added). Our
disposition of the instant Petition concerns the second element of the standard for a
finding of civil contempt.
“In determining whether a party is in contempt of a court order, the order is
subject to reasonable interpretation, though it may not be expanded beyond the
meaning of its terms absent notice and an opportunity to be heard.” Riccard v.
Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002). Moreover, we will
construe any ambiguities or uncertainties in such a court order in a light favorable to
the person charged with contempt. NBA Properties, Inc. v. Gold, 895 F.2d 30, 32
(1st Cir. 1990). Our focus in a civil contempt proceeding “is not on the subjective
beliefs or intent of the alleged contemners in complying with the order, but whether
in fact their conduct complied with the order at issue.” Howard Johnson Co., Inc. v.
Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990).
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Here, the Board argues that Georgia Power’s participation in the ultimately
unsuccessful negotiations over the OPRB and its right to unilaterally change OPRB
was insufficient to permit the implementation of changes to the OPRB or of the
unilateral ability to make future changes, pursuant to the impasse rule. In short, given
the procedural posture of the instant application, we need not, and do not, reach the
Board’s ultimate argument concerning the scope of the impasse doctrine, since our
inquiry in a civil contempt proceeding is narrowly proscribed and encompasses only
whether Georgia Power’s post-judgment conduct, including its interpretation of the
impasse rule after the unsuccessful negotiations, in fact, complied with our March 8,
1999 Judgment in this matter.
The clear and unambiguous language of the Board’s order, which we affirmed
and enforced in our March 8, 1999 Judgment, prohibited Georgia Power from
“[m]aking unilateral changes in bargaining unit employees’ OPRB without providing
notice of the proposed changes and adequate opportunity for the Union to bargain
about those changes.” Georgia Power Co., 325 N.L.R.B. at 427. The undisputed
facts show that the Union necessarily had notice of the proposed changes to the
current employees’ OPRB, by virtue of the Union’s participation in the 2000-2001
negotiations, which resulted in an impasse. Moreover, there is no dispute that the
Union had the opportunity to participate, and in fact did participate, in negotiations
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over the changes to current employees’ OPRB. It was only after the parties
participated in good-faith negotiations that Georgia Power implemented its “last, best
and final offer,” pursuant to which Georgia Power made the 2005 Plan amendments
the Board now challenges. The Board’s argument that the NLRA prohibits Georgia
Power’s implementation, pursuant to the impasse doctrine, of the “last, best and final
offer” is misplaced since our inquiry is limited to whether the “four corners” of this
Court’s judgment, in clear and unambiguous terms, prohibited Georgia Power’s
conduct, and not whether that conduct was a violation of the NLRA in the first
instance.2
2
The parties apparently dispute whether the 2000-2001 negotiations included discussions
about the general right sought by Georgia Power to unilaterally make changes in the future to current
employees’ OPRBs. Regardless of whether Georgia Power gave the Union notice and the
opportunity to bargain over this general right, however, the plain terms of the Board’s decision,
which we enforced, Georgia Power Co., 176 F.3d 494, did not address that issue. See Doe v. Bush,
261 F.3d 1037, 1062 (11th Cir. 2001) (“[A]ny ambiguities in a judgment are to be construed in favor
of the alleged contemnor.” (citing NBA Props., Inc., 895 F.2d at 32)). Therefore, even if the Board
is correct that Georgia Power did not provide the Union with notice and an opportunity to bargain
over the general right to make future unilateral changes, that does not warrant holding Georgia
Power in civil contempt. We offer no opinion on the legality of Georgia Power’s conduct under
the NLRA or whether an unfair-labor-practice complaint lies based on that conduct, as that is a
matter for the Board, not the courts, to adjudicate in the first instance. Cf. Computer Sciences Corp.
v. NLRB, 677 F.2d 804, 807-08 (11th Cir. 1982) (dismissing Board’s petition for contempt where
Board had not adjudicated underlying unfair-labor-practice complaint; “Reasons akin to those
underlying the doctrine of exhaustion of administrative remedies persuade us that it is ill-advised to
resolve these highly factual and close issues before the agency possessing expertise in these matters
has passed upon the question . . . .”). On this record, a judicial determination of the legality of
Georgia Power’s conduct under the NLRA is better postponed until there has been agency action.
Id. at 807.
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On the record before us, we cannot conclude that the Board has established, by
clear and convincing evidence that Georgia Power’s actions -- Georgia Power’s
actions, of course, would encompass its interpretation of the impasse rule in light of
our March 8, 1999 Judgment -- were based on an unreasonable interpretation of the
clear and unambiguous directive of our order enforcing the Board’s decision in this
matter. Accordingly, we DENY the Petition for Adjudication of Civil Contempt.
We DENY AS MOOT Georgia Power’s Motion to Dismiss, the Board’s
Motion for Summary Adjudication, and Georgia Power’s Cross-motion for Summary
Adjudication.
We GRANT Georgia Power’s Motion for leave to file a Reply Brief.
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