Southern Power Co. v. National Labor Relations Board
398 U.S. App. D.C. 384
| D.C. Cir. | 2012Background
- Southern Power owns four electricity plants; prior to 2008 it operated them under contract with Alabama Power (three plants) and Georgia Power (one plant).
- Exclusive bargaining representatives were IBEW Local 84 for Georgia Power plants and IBEW System Council U-19/Local 801-1 for the Alabama Power plant.
- On January 25, 2008 Southern Power terminated those service contracts and began operating all four plants itself.
- Unions filed unfair labor practice charges, contending Southern Power was a successor employer and must recognize and bargain.
- An ALJ found NLRA violations and ordered recognition and bargaining, including a three-plant unit for Local 84.
- The Board, initially with two members, affirmed the ALJ’s findings as modified; later, a three-member panel issued a final order incorporating the prior order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Southern Power is a successor employer to Georgia Power and Alabama Power. | Southern Power contends no substantial continuity exists. | NLRB argues substantial continuity shows successor status. | Board findings upheld; substantial continuity supported. |
| Whether the three-plant bargaining unit is appropriate. | Southern Power argues a single-plant unit is more appropriate. | Board appropriately used a multi-plant unit based on group bargaining history. | Board’s three-plant unit upheld. |
| Whether challenges to initial union recognition were timely. | Challenge to initial recognition should be reviewed despite time limits. | Six-month limitations on challenging initial majority status bar the claim. | Time-barred; challenge rejected. |
| Whether, under New Process Steel, the Board must have a full three-member panel to act. | Two-member rulings are invalid under New Process Steel. | Board proceedings and post-New Process Steel compliance validate the panel’s actions. | Board’s three-member panel decision timely and valid; not reviewable on that ground. |
Key Cases Cited
- Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (U.S. 1987) (substantial continuity factors for successor status)
- Cmty. Hosp. of Cent. Cal. v. NLRB, 335 F.3d 1079 (D.C. Cir. 2003) (substantial continuity assessed from employee perspective)
- Siemens Bldg. Techs., Inc., 345 N.L.R.B. 1108 (NLRB 2005) (recognition and representation considerations in continuity)
- New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (U.S. 2010) (board must have at least three members to act)
- Raymond F. Kravis Ctr. for the Performing Arts, Inc. v. NLRB, 550 F.3d 1183 (D.C. Cir. 2008) (timing and validity of challenges under NLRA)