Southern Power Co.

National Labor Relations Board - Board Decisions

Mar 20, 2009

353 N.L.R.B. 1085 (N.L.R.B. 2009)

SOUTHERN POWER CO.
353 NLRB No. 116
1085
Southern Power Company and International Broth-
erhood of Electrical Workers Local Union 84
International Brotherhood of Electrical Workers,
System Council U 19 on behalf of Local 801–1
and Southern Company Services. Cases 10–CA–
37348 and 10–CA–37414
March 20, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On November 3, 2008, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed limited cross-exceptions and an
answering brief. The Respondent filed an answering brief
and a reply brief, and the General Counsel filed a reply
brief. The Charging Party filed cross-exceptions, a sup-
porting brief, and a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, as modified herein, and to adopt
the recommended Order as modified.
We affirm the judge’s findings that the Respondent
was a successor employer and violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain
with International Brotherhood of Electrical Workers
(IBEW) System Council U 19, on behalf of Local 801–1,
as the exclusive bargaining representative of operations
technicians in one plant previously operated by Alabama
Power, and by refusing to recognize and bargain with
IBEW Local 84 as the exclusive bargaining representa-
tive of operations technicians in three plants previously
operated by Georgia Power.2 However, we reverse the
judge and find that the Respondent failed to prove that a
bargaining unit consisting of operations technicians at all

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We affirm the judge’s finding that Sec. 10(b) bars the Respon-
dent’s challenge to the legality of the initial recognition of the unions in
this case by Alabama Power and Georgia Power. We do not rely on the
judge’s findings in fns. 2 and 3 of his decision that these parties’ re-
spective initial bargaining agreements were legal and that, even apart
from the 10(b) bar, the Respondent should be estopped from asserting
that the hiring of employees at the plants involved was part of an illegal
prehire arrangement.
three former Georgia Power plants is not an appropriate
unit.
In making his unit determination, the judge declined to
give any weight to the historical representation of em-
ployees in the three former Georgia Power plants be-
cause Local 84 represented them as part of a much
broader multiplant unit. The judge then found that a
three-plant unit was not appropriate because the plants
were part of a grouping of eight plants owned and oper-
ated by the Respondent, were located between 70 and
185 miles away from each other in two different states,
and there was no evidence of interchange of employees
or functional integration for those plants.
We find that the judge erred by failing to give proper
consideration to the importance of multiplant bargaining
history in his unit determination. “Both the Board and
the courts have long recognized not only that the tradi-
tional [community-of-interest] factors, which tend to
support the finding of a larger or single unit as being
appropriate, are of lesser cogency where a history of
meaningful bargaining has developed, but also that this
fact alone suggests the appropriateness of a separate bar-
gaining unit and that compelling circumstances are re-
quired to overcome the significance of bargaining his-
tory.” Children’s Hospital of San Francisco, 312 NLRB
920, 929 (1993), enfd. sub nom. California Pacific
Medical Center v. NLRB, 87 F.3d 304 (9th Cir. 1996).3
Contrary to the judge, the Board has assigned the same
weight to bargaining history in cases where the unit in
the successor’s operation is only a portion of the prede-
cessor’s bargaining unit. See White-Westinghouse, 229
NLRB 667, 674–675 (1977), enfd. sub nom. Electrical
Workers v. NLRB, 604 F.2d 689 (D.C. Cir. 1979) (suc-
cessor’s employees in five plants of the predecessor’s
larger multiplant unit remained an appropriate unit), and
Community Hospitals of Central California v. NLRB,
335 F.3d 1079, 1085 (D.C. Cir. 2003) (stating that there
is no authority supporting the successor employer’s ar-
gument that the presumptive appropriateness of a unit of
historically-represented employees does not apply to a
subset of the predecessor’s recognized unit).4

3 See also Canal Carting, Inc., 339 NLRB 969 (2003), Met Electri-
cal Testing Co., 331 NLRB 872, 872–873 (2000), and Trident Seafoods
Inc., 318 NLRB 738 (1995), enfd. 101 F.3d 111 (D.C. Cir. 1996).
4 We reject the judge’s attempt to distinguish White-Westinghouse
from the present case on grounds that the successor in White-
Westinghouse created a subsidiary to hold the plants purchased from
the predecessor and applied the predecessor’s bargaining agreement to
the employees at those plants. Those facts were supplemental to the
key finding by the judge that “[a]lthough this multiplant unit was only
part of the industrywide unit under [the predecessor] Westinghouse and
only part of the [successor] White’s appliance division which included
some plants not represented by the Union, its bargaining history is such
that the wages, terms, and conditions of employment involved were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
Accordingly, the Respondent bears the heavy burden
of showing compelling circumstances why a three-plant
bargaining unit based on historical representation as part
of the multiplant Georgia Power unit is no longer appro-
priate. It has failed to meet this burden. In this regard,
the Board has previously found that the community-of-
interest factors cited by the judge—the Respondent’s
operational grouping of the three plants with other unrep-
resented plants, the geographical separation of the three
plants, and the lack of employee interchange and func-
tional integration among those plants—do not constitute
“compelling circumstances” sufficient to disturb the Un-
ion’s historical representation of employees in those
plants in one multiplant unit. See, e.g., Met Electrical,
331 NLRB at 872; White-Westinghouse, 229 NLRB at
674.
In sum, we find that the three-plant unit which IBEW
Local 84 seeks to represent is an appropriate bargaining
unit and that the Respondent violated Section 8(a)(5) by
refusing to recognize and bargain with Local 84 on this
multiplant basis. We shall modify the relevant provi-
sions of the recommended Order and notice in accord
with our unit determination.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Southern
Power Company, Atlanta, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) Failing and refusing to recognize and bargain with
Local 84 as the exclusive bargaining representative of the
employees in the following appropriate unit:
All operations technicians employed by the Respondent
at Plant Dahlberg, Plant Franklin, and Plant Wansley,
excluding all other employees, office clerical employ-
ees, professional employees, guards and supervisors, as
defined in the Act.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

determined as a group. . . . Thus, there is a community of interest
among the former Union-represented Westinghouse employees quite
different from other White employees simply because of their historical
multiplant representation. Any prior differences, including geographi-
cal separation and lack of interchange of employees—matters some-
times relevant in determining ab initio unit appropriateness—are ren-
dered considerably less significant by this common history.” 229
NLRB at 674 (emphasis added).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
System Council U 19 on behalf of Local 801–1 as the
exclusive bargaining representative of the employees in
the following appropriate unit:
All operations technicians employed by us at Plant
Harris, excluding all other employees, office clerical
employees, professional employees, guards and super-
visors, as defined in the Act.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
Local 84 as the exclusive bargaining representative of the
employees in the following appropriate unit:
All operations technicians employed by us at Plant
Dahlberg, Plant Franklin, and Plant Wansley, exclud-
ing all other employees, office clerical employees, pro-
fessional employees, guards and supervisors, as defined
in the Act.
WE WILL NOT, in any like or related manner, interfere
with, restrain or coerce you in the exercise of rights guar-
anteed you by Section 7 of the Act.
WE WILL, upon request, recognize and bargain with
Local 801–1 for the employees it represents in the above
appropriate unit of Plant Harris employees; and, upon
request, recognize and bargain with Local 84 for the em-
ployees it represents in the above appropriate unit of em-
ployees at Plants Dahlberg, Franklin, and Wansley.
SOUTHERN POWER CO.
Lauren Rich, Esq. and Katherine Chahrouri, Esq., for the Gen-
eral Counsel.
Robert M. Weaver, Esq. (Nakamura, Quinn, Walls, Weaver &
Davies, LLP), for the Respondent.
Michael D. Kaufman, Esq. (Troutman Sanders, LLP), for the
Respondent.
SOUTHERN POWER CO. 1087
M. Jefferson Starling III, Esq. (Balch & Bingham, LLP), for the
Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was tried in Birmingham, Alabama, on September 8, 2008.
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to bargain
with the Charging Party Unions as the successor employer to
Georgia Power and Alabama Power, which had had bargaining
relationships and collective-bargaining agreements with the
Charging Party Unions with respect to certain affected employ-
ees. The Respondent filed an answer denying the essential
allegations in the complaint. Much of the record herein con-
sists of stipulations and agreed-upon exhibits, augmented by
testimony at the 1-day hearing. After the trial, the parties filed
briefs, which I have read and considered.1
Based on the entire record, including the testimony of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times herein, Respondent Southern Power, a
Delaware corporation with offices and places of business in
Atlanta, Georgia, and Birmingham, Alabama, has operated
facilities in a number of locations, including at Plant Dahlberg,
in Nicholson, Georgia (here Plant Dahlberg); at Plant Franklin,
in Smiths, Alabama (here Plant Franklin); at Plant Wansley, in
Franklin, Georgia (here Plant Wansley); and Plant Harris, in
Autaugaville, Alabama (here Plant Harris), where it has been
engaged in the generation and sale of electricity at market-
based rates in the wholesale market both to unaffiliated whole-
sale purchasers of energy as well as to purchasers which are
corporate affiliates of Respondent, such as Georgia Power
Company (here Georgia Power), Alabama Power Company
(here Alabama Power), Gulf Power Company, and Mississippi
Power Company.
During a representative 1-year period, Respondent, in con-
ducting its business operations described above, has had annual
revenues in excess of $250,000 from the sale of electrical en-
ergy, and has purchased and received at its Georgia facilities
described above, products, goods and materials valued in ex-
cess of $50,000 from points outside the State of Georgia. In
addition, during the same period, Respondent has had annual
revenues in excess of $250,000 from the sale of electrical en-
ergy, and has purchased and received at its Alabama facilities
described above, products, goods and materials valued in ex-
cess of $50,000 from points outside the State of Alabama.
Accordingly, I find, as Respondent admits, that Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.

1 The General Counsel filed an unopposed motion to correct tran-
script of record and exhibit, which I hereby include in the record and
grant.
At all material times, Local 84 has been a labor organization
within the meaning of Section 2(5) of the Act. At all material
times, System Council U-19 and Local 801-1 have been labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Southern Company is a holding company that owns all of the
outstanding common stock of a number of entities, including
the Respondent herein, Southern Power Company, Southern
Company Services (SCS), Georgia Power Company, and Ala-
bama Power Company.
Respondent is an energy wholesaler in the competitive elec-
tricity market. It owns and manages generating facilities in
Georgia, Alabama, Florida, and North Carolina, including the
four facilities involved in this case (Plant Dahlberg, Plant Wan-
sley, Plant Franklin, and Plant Harris). It neither owns nor
controls transmission facilities (other than interconnection fa-
cilities) and does not have retail load or a franchised service
territory. Respondent’s business operations are not subject to
the same traditional state regulation as public utilities, but Re-
spondent is subject to regulation by the Federal Energy Regula-
tory Commission (FERC).
Alabama Power and Georgia Power are two of Southern
Company’s traditional public retail utility subsidiaries. Ala-
bama Power has about 6800 employees, of whom about 2700
are, and have been for over 60 years, represented by Interna-
tional Brotherhood of Electrical Workers System Council U-19
and various IBEW locals, including Local 801. The most re-
cent memorandum of understanding (MOU) between Alabama
Power and the various IBEW locals represented by System
Council U-19 is effective from September 14, 2004, to August
15, 2009. Georgia Power has about 9200 employees, of whom
about 3600 are, and have been for many years, represented by
IBEW Local 84. Georgia Power and Local 84 have been par-
ties to successive collective-bargaining agreements, the most
recent being effective July 1, 2005, through June 30, 2008.
SCS functions as a centralized service company and employs
about 4200 people. It provides engineering, financial, human
resources, accounting, auditing, and other services, upon re-
quest and at cost to Southern Company subsidiaries, including
Southern Power, Georgia Power, and Alabama Power. At all
material times, SCS has provided engineering, financial, human
resources, accounting, auditing and other services to Respon-
dent Southern Power at Plant Dahlberg, Plant Franklin, Plant
Wansley, and Plant Harris. While SCS provides human re-
sources and payroll functions for Respondent Southern Power,
the employees involved herein are employed on behalf of Re-
spondent Southern Power.
Respondent’s generating facilities operate with compara-
tively small staffs of highly skilled employees who perform all
the functions necessary to the combined operation of the plants.
The employees at issue in this case are the employees who
perform these functions at Plant Dahlberg (approximately 5
employees); Plant Franklin (approximately 25 employees);
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
Plant Wansley (approximately 15 employees); and Plant Harris
(approximately 15 employees).
The Employee Units
The Respondent, Southern Power, initially staffed Plants
Dahlberg, Wansley, and Franklin by entering into a labor ser-
vices agreement with Georgia Power whereby Georgia Power
provided the personnel to operate those plants. Respondent
also initially contracted with Alabama Power to provide the
staffing for Plant Harris under a labor services agreement.
These staffing arrangements continued until January 2008,
when Respondent terminated its labor services contracts with
Alabama Power and Georgia Power.
Plant Harris. To meet its obligations under its labor services
agreement to provide skilled labor necessary to operate Plant
Harris, Alabama Power determined that it needed to create a
new position, which it called general plant operator (GPO). At
this time, Alabama Power believed that the then current collec-
tive-bargaining agreement did not include the classification or a
job description for the GPO position. In March 2002, Alabama
Power and System Council U-19 reached a new, separate bar-
gaining agreement under which Alabama Power voluntarily
recognized a new sub-local, Local 801-1 as the bargaining
agent for a new, separate bargaining unit consisting solely of
GPOs at Plant Harris. This agreement (the Harris MOU) was
effective April 1, 2002, through May 31, 2010. Although no
GPO positions were in existence on April 1, Alabama Power
advertised for the positions from about March 28 through about
April 7, 2002, and filled 15 GPO positions at Plant Harris in
July and August 2002. Of the 15 GPOs initially hired to staff
Plant Harris, 14 were transferred from other Alabama Power
plants or facilities; only one was hired from outside the South-
ern Company.
In January 2006, Local 801-1 requested bargaining with Ala-
bama Power, pursuant to a contractual wage reopener clause
and the parties agreed to a new wage agreement at that time. In
accordance with its services agreement with Respondent, Ala-
bama Power continued to operate, maintain, and repair all gen-
erating units at Plant Harris until January 25, 2008.
Plants Wansley, Dahlberg, and Franklin. To meet its con-
tractual obligations with Respondent to provide skilled labor
necessary to operate Plants Wansley, Dahlberg, and Franklin,
Georgia Power determined that it needed to create a new GPO
position that was not covered under the then current collective-
bargaining agreement. Local 84 and Georgia Power entered
into a memorandum of understanding dated January 4, 2000
(the Georgia MOU) encompassing rates of pay, hours, and
other terms and conditions of employment for GPOs at Plants
Wansley, Dahlberg, and Franklin. As of January 4, no indi-
viduals were employed by Georgia Power as GPOs at the above
plants. However, beginning in March 2000 and continuing
over the next 2 years, Georgia Power fully staffed all three
plants with GPOs, most of whom transferred from other Geor-
gia Power facilities or other Southern Company facilities.
Since 2000, Georgia Power and Local 84 have negotiated suc-
cessive collective-bargaining agreements, which include in the
bargaining unit the GPOs employed by Georgia Power at Plants
Wansley, Dahlberg, and Franklin. Georgia Power continued to
provide GPOs to operate, maintain, and repair all generating
units at Plants Wansley, Dahlberg, and Franklin in accordance
with its services agreement with Respondent.
The Takeover by Southern Power
On or about January 11, 2008, Respondent Southern Power
sent notice to Georgia Power and Alabama Power of its intent
to terminate the labor services portion of their service agree-
ments applicable to the operation of Plants Wansley, Dahlberg,
Franklin, and Harris, thus having Respondent employ its own
plant operators in the classifications of Operations Technicians
(OTs) instead of the GPOs employed by Alabama Power and
Georgia Power. The reason for this action was that Respon-
dent’s management believed that it had to separate Georgia
Power and Alabama Power employees from Respondent so that
it could eliminate business and regulatory risks under certain
FERC rulings. Nothing in those rulings, however, required
Respondent to withhold union recognition and bargaining or
prohibited union recognition and bargaining.
On or about January 25, 2008, Respondent terminated its la-
bor services arrangements with Alabama Power and Georgia
Power with respect to the operation of Plants Wansley, Dahl-
berg, Franklin, and Harris and took over the operation, mainte-
nance and repair of all generating units at those plants. Since
then, Respondent has been substantially engaging in the same
business operations, at the same location, providing the same
product, and has employed as a majority of its employees, indi-
viduals who were previously employees of Alabama Power or
Georgia Power at these facilities.
On or about January 11, 2008, Respondent made written of-
fers of employment for the newly minted OT positions at the
four facilities involved to all GPOs employed by Alabama
Power and Georgia Power at Plants Dahlberg, Franklin, Wan-
sley, and Harris. Included in those offers was a document list-
ing a summary of changes in terms and conditions of employ-
ment if the GPOs accepted the offers of employment as OTs.
Alabama Power offered its affected employees the option to
relocate and bid for employment at other Alabama Power facili-
ties in accordance with the applicable bargaining agreement
with Local 801-1; and Georgia Power offered its affected em-
ployees the option to relocate and bid for positions at other
Georgia Power facilities in accordance with the applicable bar-
gaining agreement with Local 84.
At Plant Harris, all but one of the 17 affected employees ac-
cepted Respondent’s offer of employment. At Plant Wansley,
all but three of the 15 affected employees accepted Respon-
dent’s offer of employment. At Plant Dahlberg, all but one of
the five affected employees accepted Respondent’s offer. At
Plant Franklin, all of the 21 affected employees accepted the
offer. There was no hiatus in employment for any of these
individuals between the time they worked for Alabama Power
or Georgia Power and the time they worked for Respondent.
After the employees transitioned from the GPO classification to
the OT classification, there were approximately 4 OTs em-
ployed at Plant Dahlberg; 21 OTs employed at Plant Franklin;
12 OTs employed at Plant Wansley; and 16 OTs employed at
Plant Harris.
SOUTHERN POWER CO. 1089
There were no changes in the terms and conditions of em-
ployment for the new OTs hired at the four facilities by Re-
spondent, except for a wage increase, performance bonus target
plan, personal time off policy and health insurance. In all other
material respects, their job duties, immediate supervision, and
job locations essentially remained the same. The individuals
who were the plant managers at the four facilities when they
were run by Alabama Power and Georgia Power remained plant
managers after the transition to the Respondent.
The Refusal to Bargain
On or about January 15, 2008, and continuing to date, Local
84 has requested that Respondent recognize and bargain with
Local 84 as the exclusive bargaining representative for the OTs
employed at Plants Dahlberg, Franklin, and Wansley. Since
that date, Respondent has refused and continues to refuse to
recognize and bargain with Local 84 for those employees. On
or about January 24, 2008, and continuing to date, Local 801-1
has requested that Respondent recognize and bargain with Lo-
cal 801-1 as the exclusive bargaining representative for the OTs
employed at Plant Harris. Since that date, Respondent has
refused and continues to refuse to recognize and bargain with
Local 801-1 for those employees. According to one of Re-
spondent’s witnesses, the Respondent refused to recognize and
bargain with these unions because “we had no indication from
our employees that they wanted a representative,” it did not
have union representation at its other four plants, and the em-
ployees at the four plants that Respondent took over in January
of 2008 “voluntarily left their positions at Alabama Power and
Georgia Power to come work with Southern Power.” (Tr. 41.)
The Complaint
The consolidated complaint alleges that Respondent is a suc-
cessor employer for the OTs in the Alabama unit and that its
refusal to bargain with Local 801-1 for the following appropri-
ate unit violated Section 8(a)(5) of the Act:
All operations technicians employed by the Respondent at
Plant Harris, excluding all other employees, office clerical
employees, professional employees, guards and supervisors,
as defined in the Act.
The consolidated complaint also alleges that Respondent is a
successor employer for the OTs in the Georgia unit and that its
refusal to bargain with Local 84 for the following appropriate
unit violated Section 8(a)(5):
All operations technicians employed by the Respondent at
Plant Dahlberg, Plant Franklin, and Plant Wansley, excluding
all other employees, office clerical employees, professional
employees, guards and supervisors, as defined in the Act.
Discussion and Analysis
Under the Board’s successorship doctrine upheld by the Su-
preme Court, a new employer who maintains generally the
same business as the predecessor and hires a majority of its
employees from the predecessor also assumes the bargaining
obligation of the predecessor. Where the predecessor union has
a presumption of majority status, for example, through contrac-
tual recognition by the predecessor, as here, that status contin-
ues despite the change of employers. The focus of the succes-
sorship inquiry is on whether there has been a “substantial con-
tinuity” between the two enterprises. Under this approach, the
Board examines a number of factors: whether the business of
both employers is essentially the same; whether the employees
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. “Substantial continuity” is
measured from the perspective of the employees who, as the
Supreme Court observed, will view their jobs as essentially
unchanged, including their legitimate expectation of continued
representation. Fall River Dyeing & Finishing Corp. v. NLRB,
482 U.S. 27, 41–43 (1987).
In this case, all of the relevant factors point to a substantial
continuity of the employing enterprise. Respondent hired a
majority of the employees at the four facilities. All were repre-
sented by an incumbent union for at least 6 years before the
transition to the Respondent. The GPOs at Plant Harris were
covered under a separate collective-bargaining agreement; the
GPOs at the other facilities were specifically covered under an
overall agreement applicable to a number of additional facili-
ties. The work and the working conditions of the affected em-
ployees remained essentially the same. They worked at the
same location, performed the same jobs on the same equipment
and reported to the same supervisors and managers. And there
was no hiatus between the operations of the predecessor and the
successor. In these circumstances, I find that there was a sub-
stantial continuity in the employing enterprise. Thus, given the
Respondent’s hiring of a majority of the work force at Plant
Harris as well as at the three other facilities (Plant Wansley,
Dahlberg, and Franklin), I also find that Respondent was a
successor employer in those units, which had been represented
by unions at the predecessor employer.
The Respondent raises several defenses. The first is that
both Alabama Power and Georgia Power unlawfully recognized
the respective unions in the units involved here. (Br. 17–21.)
The basis for this contention is that the predecessors entered
into “illegal prehire agreements” because recognition was ac-
corded before employees were hired in those units, even though
employees were shortly transferred into those unit positions
from elsewhere in the union-represented predecessor compa-
nies and the employees were covered under successive collec-
tive-bargaining agreements over a period of 6 years or more
before Respondent’s takeover. Respondent’s defense must fail,
however, because it may not raise the alleged illegality of the
earlier recognition—which would have been an unfair labor
practice if true.2 For obvious policy reasons, an unfair labor

2 The General Counsel asserts (Br. 26–27) that the initial bargaining
agreements covering the Georgia Power and Alabama Power GPOs
were not illegal prehire agreements, but rather lawful clarifications of
existing units. I agree. Respondent has not, on this record, persua-
sively established that the agreements were illegal. They were simply
attempts to cover new classifications which were related to those his-
torically performed by other employees, as demonstrated by the fact
that most of the positions were filled by existing union-represented
employees at other facilities shortly after the agreements were signed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
practice must be brought forward within 6 months of its occur-
rence under Section 10(b) of the Act. The Board has specifi-
cally held that a successor employer may not attack the validity
of the initial recognition of a union by a predecessor if that
recognition took place outside the 10(b) period. Alpert’s, Inc.,
267 NLRB 159, 160 fn. 1 (1983). See also Raymond F. Kravis
Center for the Performing Arts, 351 NLRB 143, 144 fn. 8
(2007); and International Hod Carriers, 153 NLRB 659, 659
fn. 3 (1965).3
Respondent also contends (Br. 27–30) that there is no sub-
stantial continuity in the employing entities because Respon-
dent is fundamentally different in both size and operation from
the predecessor employers. That contention does not defeat a
finding of substantial continuity in this case, based on the evi-
dence set forth above. Even though Respondent is an energy
wholesaler and not an energy retailer, like the predecessors, that
fact is of little significance in assessing substantial continuity of
the employing enterprise, particularly since Respondent and the
predecessors are all owned by the same holding company and
they all run generating plants. The employing enterprises are
not the overall companies involved, but the four facilities
whose employees were taken over by Respondent. Respondent
nevertheless argues that the predecessor companies are much
larger at least in terms of employees than Respondent, which
employs only about 300 employees and operates only eight
plants, including the four at issue in this case. Moreover, ac-
cording to the Respondent, the OTs at the four plants taken
over by Respondent comprise only a small number of the
predecessor’s employees. These factors likewise do not destroy
the substantial continuity of the employing enterprise.
As a general matter, it is well settled that a mere diminution
in the size of a successor’s unit, as compared with that of the
predecessor does not “change the nature of the [employing
entity] so as to defeat the employees’ expectation in continued
representation by their union.” Fall River, supra at 46 fn. 12.
As the Seventh Circuit has recognized, “the Board may treat a
much reduced bargaining unit as a miniature of the former
unit.” Zim’s IGA Foodliner v. NLRB, 495 F.2d 1131, 1141 (7th
Cir. 1974), cert. denied 419 U.S. 838 (1974). See also Bronx
Health Plan, 326 NLRB 810, 812 (1998), enfd. mem. 203 F.3d
51 (D.C. Cir. 1999); Lincoln Park Zoological Society, 322
NLRB 263, 265 (1996), enfd. 116 F.3d 216 (7th Cir. 1997).

An existing unit may be clarified to accomplish this result. See Prem-
cor Inc., 333 NLRB 1365 (2001).
3 Respondent was not a complete neutral in the operation of the four
facilities at issue here. Respondent, a corporate affiliate of the prede-
cessors, owned the plants involved and had labor services contracts
with the predecessors to run the plants. Indeed, one of Respondent’s
senior officials testified he had responsibility over those operations and
was familiar with the collective-bargaining agreement covering af-
fected employees at three of the facilities. Tr. 51–53. In these circum-
stances, it is reasonable to infer that Respondent had knowledge of the
initial and continuing union representation at the facilities involved
herein. Thus, even apart from the 10(b) bar to its defense, Respondent
is estopped from raising at this late date an allegation that the employ-
ees initially hired to run those plants by the predecessors were part of
an illegal prehire arrangement. See Strand Theater of Shreveport
Corp., 346 NLRB 523, 536–537 (2006), enfd. 493 F.3d 515 (5th Cir.
2007).
In support of its contention, Respondent cites and relies upon
Atlantic Technical Services Corp., 202 NLRB 169 (1973), in
which the Board declined to find a successorship bargaining
obligation where the employees taken over by the successor
constituted a distinct but small percentage of the predecessor’s
represented employees. But that case, which as the Board
stated, presented “peculiar circumstances,” is distinguishable
from the situation here. In that case, the successor took over a
mail and distribution operation, which was only a “small frac-
tion” of the 14,000 employees in the companywide unit recog-
nized by the predecessor, Trans World Airlines (TWA). The
entire complement of employees hired by the successor, 41,
constituted less than 4 percent of the total number of 1100 em-
ployees working at the particular location involved, only 27 of
which came from the former TWA unit. Thus, as the Board
stated, the former TWA unit became “doubly diluted.” More-
over, TWA was a large nationwide company, engaged primar-
ily in transportation and related fields governed under the Rail-
way Labor Act, whereas the successor was a small localized
organization much different in character than the predecessor.
Although the Board failed to find a successorship violation, it
did determine that the successor violated the Act by failing to
recognize the union thereafter, despite evidence that a majority
of the employees it hired desired union representation. In en-
forcing that part of the order and upholding the Board’s finding
on the successorship issue on a somewhat narrower ground, the
reviewing court criticized the Board’s reasoning on the succes-
sorship issue. Machinists v. NLRB, 498 F.2d 680, 683 fn. 3
(D.C. Cir. 1974). Indeed, the Board itself subsequently ac-
knowledged that Atlantic Technical was “factually unique.”
See University Medical Center, 335 NLRB 1318, 1333 (2001),
enfd. in part 335 F.3d 1079 (D.C. Cir. 2003).
Here, on the other hand, the Respondent operates in the same
industry as the predecessors, and indeed, is part of the same
corporate structure. Moreover, there was no diminution in the
Plant Harris unit because Respondent hired all the OTs (previ-
ously GPOs) at Plant Harris, all of whom had been covered
under a separate bargaining agreement. There was some dimi-
nution in the other unit since the OTs (previously GPOs) at the
other three facilities were part of a larger multiplant unit. But
that larger unit was nowhere near as large or as different as the
predecessor’s unit in Atlantic Technical. Indeed, according to
uncontradicted testimony, the OTs (previously GPOs) at the
other three facilities were covered under the Georgia
Power/Local 84 agreement as part of the generation division
that numbers some 600 to 800 employees. Moreover, unlike
the employees in Atlantic Technical, their job functions were
closely related to those of the other employees covered in the
generation division of the Georgia Power agreement (Tr. 26–
27). And, unlike in Atlantic Technical, the union-represented
employees in the predecessor units had been transferred from
other union-represented units. Finally, unlike in Atlantic Tech-
nical, the successor employer is not a small company that oper-
ates only those entities that it took over from the predecessors.
It is in the business of running electric generating plants, the
same business engaged in by the predecessors.
Respondent also alleges (Br. 33, 38) that the employees at
the four facilities it took over decided not to transfer into other
SOUTHERN POWER CO. 1091
jobs at Alabama Power and Georgia Power where they could
have retained union representation and instead decided to trans-
fer into its essentially nonunion environment. From this prem-
ise, Respondent argues that the employees had no legitimate
expectation of continued representation and that Respondent
had a good-faith doubt of the incumbent unions’ continued
majority status. All of these arguments lack merit.
The Respondent misperceives the effect of a successorship
finding on continued representation rights as reflected in Fall
River and other successorship cases. The Supreme Court’s
reference to the legitimate expectation of continued representa-
tion did not mean that this was a matter to be proved or dis-
proved through litigation. The Court was merely stating that
when a finding of substantial continuity is made it is a natural
inference, indeed, a legal conclusion, that the affected employ-
ees have a legitimate expectation of continued representation.
Respondent also derives from its premise that it had a good-
faith doubt of the continued majority status of the incumbent
unions in the four facilities involved here. That again is wrong
as a matter of law. The finding of substantial continuity in the
employing enterprise precludes any attack on the majority
status of the incumbent unions. Indeed, Respondent misreads
(Br. 37–38) the footnote in Fall River, supra at 41 fn. 9, it cites
in support of its position. In the referenced footnote, the Court
assumed that a legal successor first had the duty to negotiate
with the predecessor’s incumbent union, but, if in subsequent
negotiations it had evidence of an actual loss of majority or
objective evidence that led to a good-faith doubt of majority it
could lawfully withdraw from further bargaining. In this case,
Respondent never undertook to recognize or negotiate with the
incumbent unions. It refused to recognize the incumbent un-
ions based on circumstances surrounding its takeover of the
four facilities, namely that employees chose to keep their exist-
ing jobs with the successor rather than to transfer to other un-
ionized facilities of the predecessors. In any event, the fact that
employees took “nonunion” jobs does not establish that they no
longer wanted union representation; their primary concern was
to keep their existing jobs. See Siemens Building Technologies,
345 NLRB 1108, 1109 (2005), where a similar argument was
rejected. Thus, not only does Respondent’s assertion that the
employees rejected union jobs at the predecessors to take its
nonunion jobs not amount to a loss of majority or even of a
good-faith doubt of majority, but it is simply an incidental ef-
fect of the substantial continuity of the employing enterprise
when, as here, the successor hires a majority of the predeces-
sor’s employees and continues the same basic operation and
working conditions. Moreover, the reference to good-faith
doubt in the Fall River footnote is outdated. Since the Fall
River decision the law of withdrawal of recognition has
changed. Good-faith doubt of majority is no longer a defense
to withdrawal of recognition. An employer must show an ac-
tual loss of majority. See Levitz Furniture Co., 333 NLRB 717,
725 (2001); and Siemens Building Technologies, supra at 1109.
This Respondent has failed to do.
Respondent also contends (Br. 31–32) that it cannot be a le-
gal successor because it did not purchase the assets of the
predecessors, citing Harter Tomato Products Co., 321 NLRB
901, 902 (1996), enfd. 133 F.3d 934 (D.C. Cir. 1998). This
contention is likewise without merit and somewhat disingenu-
ous since Respondent owned the plants in question, and, previ-
ous to its takeover, had contracted out the operation of the
plants to Georgia Power and Alabama Power. The Board’s
discussion, in Harter, of two examples of “typical” successor-
ship cases was not meant to act as a limitation on the types of
transactions that amount to a substantial continuity sufficient to
trigger a bargaining obligation. Indeed, the General Counsel
has cited cases (Br. 28–29) in which successorship findings
have been based on employers recapturing a previously subcon-
tracted operation. See Saks Fifth Avenue, 247 NLRB 1047
(1980), enfd. in part 634 F.2d 681 (2d Cir. 1980); and Cablevi-
sion Systems Development Co., 251 NLRB 1319 (1980), enfd.
671 F.2d 737 (2d Cir. 1982), cert. denied 459 U.S. 906 (1982).
See also G.T.E. Data Services Corp., 194 NLRB 719, 720–721
(1971).
Finally, the Respondent contends that the two units alleged
in the complaint—Plant Harris and the combined three former
Georgia Power facilities of Plants Wansley, Dahlberg, and
Franklin—are not appropriate units and therefore Respondent
was free to refuse to bargain in those units. It is undisputed that
a successor employer may advance as a defense to a successor-
ship bargaining obligation that the unit in which it is required to
bargain is an inappropriate unit. It is also well settled that sin-
gle plant units are presumptively appropriate, even in a succes-
sorship context. See Van Lear Equipment, Inc., 336 NLRB
1059, 1063 (2001); Children’s Hospital, 312 NLRB 920, 928
(1993), enfd. 87 F.3d 304 (9th Cir. 1995). This presumption is
overcome only if the single-facility unit “has been so effec-
tively merged into a more comprehensive unit, or is so func-
tionally integrated, that it has lost its separate identity.” Dattco,
Inc., 338 NLRB 49, 50 (2002).
In its brief, Respondent does not contest the appropriateness
of the Plant Harris unit. Plant Harris is a single facility, which,
as indicated above, is presumptively appropriate. Moreover,
that unit has historically been the subject of separate collective
bargaining and Respondent has offered no evidence and no
reason why bargaining cannot continue in such a historically
valid and presumptively appropriate unit. I find therefore that
the Plant Harris unit is an appropriate unit.
Respondent’s brief (Br. 35–37) instead concentrates on an at-
tempt to show that the second unit, the employees in the three-
plant former Georgia Power unit, is not an appropriate unit.
Unlike Plant Harris, that unit was not itself an historic separate
bargaining unit under the predecessor employer; it was part of a
greater overall unit. Moreover, as Respondent points out, those
three plants are now part of a grouping that includes a total of
eight plants owned and operated by Respondent. The three
plants are in two different states (Georgia and Alabama) and
they are between 70 and 185 miles away from each other.
There is no evidence on this record of an interchange of em-
ployees or functional integration in the separate three-plant
unit. The only evidence in support of a three-plant unit is that,
as a part of a multiemployee, multiplant unit under the prede-
cessor, the employees had many of the same benefits, which
were retained, with minor changes, when Respondent took over
the operations of the three plants. But that circumstance alone
does not operate to overcome the presumption that single plant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
units at each of Plant Wansley, Franklin, and Dahlberg are
appropriate.
In advancing the appropriateness of the three-plant former
Georgia Power unit, the General Counsel and the Charging
Parties contend that historically-established bargaining units
will not lightly be disturbed in successorship situations, citing
Ready Mix USA, Inc., 340 NLRB 946, 947 (2003). But that
principle does not apply here because the three-plant former
Georgia Power unit, which Respondent took over, was not a
separate historical unit. The employees in the three plants in-
volved here were part of a much broader multiplant unit of
Georgia Power employees. Indeed, both Ready Mix and an-
other case chiefly relied upon by the General Counsel and the
Charging Parties, Children’s Hospital, cited in full above, are
clearly distinguishable from the situation here. In Ready Mix,
the successor purchased all three plants operated by the prede-
cessor and all had been included in a single bargaining unit. In
Children’s Hospital, the predecessor’s unit was a presump-
tively appropriate single unit facility. Thus, neither case sup-
ports the position that the three-plant former Georgia Power
unit is a historically-recognized appropriate unit.
Actually, the strongest case in support of that position is
White-Westinghouse, 229 NLRB 667, 675 (1977), enfd. sub
nom. Electrical Workers v. NLRB, 604 F.2d 689 (D.C. Cir.
1979), cited by the General Counsel for a different point in his
brief (Br. 31). But that case is likewise distinguishable from
the situation here. In White-Westinghouse, the successor pur-
chased some, but not all, of the plants in the predecessor’s mul-
tiplant unit. The Board nevertheless found that there was a
substantial continuity of the employing entity. But it also found
that the purchased grouping was an appropriate unit. Unlike in
this case, however, the successor in White-Westinghouse cre-
ated a subsidiary specifically formed to hold the plants pur-
chased from the predecessor and assumed the predecessor’s
collective-bargaining agreement, applying it to the employees
in the plants it had purchased. No such circumstances are pre-
sent in this case.4
I also note, however, that Local 84 has expressed an interest
in bargaining in single plant units (Br. 13 fn. 13, Tr. 67). The
record herein does not include the letter demand for bargaining
by Local 84 and the stipulation of the parties simply states that
“[s]ince on or about January 15, 2008, and continuing to date,
Local 84 has requested that [Respondent] recognize and bar-

4 The General Counsel also cites Siemens Building Technologies,
345 NLRB 1108, 1008 fn. 2 (2005), in support of its position that the
“bargaining units alleged in the complaint should be found to be appro-
priate.” (Br. 22.) But, in that case, the Board simply corrected the
judge’s “inadvertent” failure to include a unit description in his deci-
sion. To the extent that the Board commented on the appropriate unit
issue in its footnoted discussion, the Board simply stated that the bar-
gaining unit alleged in the complaint “is essentially the same as the unit
described in the collective bargaining agreement between the predeces-
sor (Monroe County) and the Union.” Indeed, the successor purchased
only the one plant from the predecessor; and that one plant was also the
presumptively appropriate unit, even though the predecessor’s bargain-
ing agreement included other facilities. Thus, the situation in Siemens
is very different from the situation presented in the three-plant Georgia
Power takeover in this case.
gain with Local 84 as the exclusive bargaining representative
for employees employed as OTs at Plants Dahlberg, Franklin
and Wansley.” In view of Local 84’s clarification set forth
above, I read the stipulation as setting forth a request to bargain
in each single plant unit, as well as in the overall three-plant
unit. Even assuming, however, that Local 84’s bargaining de-
mand was limited to the three-facility unit it formerly repre-
sented rather than for each of the plants individually, Local 84
is entitled to bargain in the single plant units whose employees
it represents. Because parties in a successorship situation can-
not know definitively the appropriateness of the unit in which
they are obligated to bargain, the requirement for specificity in
a successorship bargaining demand is not absolute. See Trident
Seafoods, 318 NLRB 738, 739 (1995), enfd. in part 101 F.3d
111 (D.C. Cir. 1996); and Hydrolines, Inc., 305 NLRB 416,
420 (1991). Moreover, Respondent’s refusal to bargain was not
based on its view that Local 84’s demand was too broad or that
the three-plant former Georgia Power unit was inappropriate. It
refused to bargain in any unit. In these circumstances, it was
incumbent on Respondent “to seek clarification, which it did
not do.” Trident Seafoods, supra at 739. Nor does anything in
Respondent’s argument that the three-plant unit was inappro-
priate cast doubt on Local 84’s presumptive majority status in
each of the constituent single plant units. It is clear that the
presumptive majority status of Local 84 in each of the single
plant units continued as a consequence of its presumptive ma-
jority status in the overall unit because of the substantial conti-
nuity of the employing entity. Thus, each of the single plant
units can be viewed as “a miniature” of the three-plant unit.
See Zim’s IGA Foodliner v. NLRB, supra at 1141, as well as
other cases cited at page 7 of this decision. I therefore find that
Respondent was required to bargain with Local 84 in each of
the single plant units in which it had a previous bargaining
relationship.
In view of my findings set forth above, I find that the Re-
spondent, as a successor employer, violated Section 8(a)(5) and
(1) of the Act by refusing to recognize and bargain with Local
801-1 for the Plant Harris OT employees and with Local 84 for
the OT employees at Plant Wansley, Plant Franklin, and Plant
Dahlberg.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with Local 801-1 in the following appropri-
ate unit:
All operations technicians employed by Respondent at Plant
Harris, excluding all other employees, office clerical employ-
ees, professional employees, guards and supervisors, as de-
fined in the Act.
2. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with Local 84 in the following three appro-
priate units.
(a) All operations technicians employed by Respondent at
Plant Dahlberg, excluding all other employees, office clerical
employees, professional employees, guards and supervisors, as
defined in the Act.
SOUTHERN POWER CO. 1093
(b) All operations technicians employed by Respondent at
Plant Franklin, excluding all other employees, office clerical
employees, professional employees, guards, and supervisors, as
defined in the Act.
(c) All operations technicians employed by Respondent at
Plant Wansley, excluding all other employees, office clerical
employees, professional employees, guards, and supervisors, as
defined in the Act.
3. The above violations are unfair labor practices affecting
commerce within the meaning of the Act.
REMEDY
Having found that Respondent violated the Act in certain re-
spects, I shall recommend that it cease and desist from engag-
ing in such violations, take affirmative action to remedy them,
including recognizing and bargaining with Local 801-1 and
Local 84 as a successor employer, and post an appropriate no-
tice.
On these findings of fact and conclusions of law, and on the
entire record herein, I issue the following recommended5
ORDER
The Respondent, Southern Power Company, Atlanta, Geor-
gia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with Local
801–1 as the exclusive bargaining representative of the em-
ployees in the following appropriate unit:
All operations technicians employed by Respondent at Plant
Harris, excluding all other employees, office clerical employ-
ees, professional employees, guards and supervisors, as de-
fined in the Act.
(b) Failing and refusing to recognize and bargain with Local
84 as the exclusive bargaining representative of the employees
in the following appropriate units:
All operations technicians employed by Respondent at
Plant Dahlberg, excluding all other employees, office
clerical employees, professional employees, guards and
supervisors, as defined in the Act.
All operations technicians employed by Respondent at
Plant Franklin, excluding all other employees, office cleri-

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
cal employees, professional employees, guards and super-
visors, as defined in the Act.
All operations technicians employed by Respondent at
Plant Wansley, excluding all other employees, office cleri-
cal employees, professional employees, guards and super-
visors, as defined in the Act.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request, recognize and bargain with Local 801-1
for the employees it represents in the above appropriate unit of
Plant Harris employees; and, upon request, recognize and bar-
gain with Local 84 for the employees it represents in the above
appropriate units of employees at Plants Dahlberg, Franklin,
and Wansley.
(b) Within 14 days after service by the Region, post at its fa-
cilities at Plants Harris, Dahlberg, Franklin, and Wansley cop-
ies of the attached notice marked “Appendix.”6 Copies of the
notice, on forms provided by the Regional Director for Region
10, after being signed by the Respondent’s authorized represen-
tative, shall be posted by Respondent and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed any of the facili-
ties involved in these proceedings, Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and all former employees employed by Respondent
at any time since January 15, 2008.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that
Respondent has taken to comply.

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”