Southern Power Company

National Labor Relations Board - Administrative Judge Opinions

Nov 3, 2008

10-CA-037348 (N.L.R.B. Nov. 3, 2008)

JD(ATL)–41–08
Atlanta, GA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
SOUTHERN POWER COMPANY
Respondent
and CASE 10–CA–37348
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL UNION 84
Charging Party
and CASE 10–CA–37414
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, SYSTEM
COUNCIL U 19 on behalf of LOCAL 801-1
Charging Party
and
SOUTHERN COMPANY SERVICES
Party-in-Interest
Lauren Rich, Esq., and Katherine Chahrouri, Esq.,
for the General Counsel.
Robert M. Weaver, Esq., (Nakamura, Quinn, Walls,
Weaver & Davies, LLP), for the Respondent.
Michael D. Kaufman, Esq., (Troutman Sanders, LLP),
for Respondent.
M. Jefferson Starling, III, Esq., (Balch & Bingham, LLP),
for 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 violated 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 employees. The Respondent filed an
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answer denying the essential allegations in the complaint. Much of the record herein
consists of stipulations and agreed-upon exhibits, augmented by testimony at the one-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, GA
(here Plant Dahlberg); at Plant Franklin, in Smiths, AL (here Plant Franklin); at Plant
Wansley, in Franklin, GA (here Plant Wansley); and Plant Harris, in Autaugaville, AL (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 wholesale 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 one-year period, Respondent, in conducting its business
operations described above, has had annual revenues in excess of $250,000 from the sale
of electrical energy, and has purchased and received at its Georgia facilities described
above, products, goods and materials valued in excess 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 energy, and has purchased and received at
its Alabama facilities described above, products, goods and materials valued in excess 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 Section
2(2), (6) and (7) of the Act.
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.
The Alleged Unfair Labor Practices
A. The Facts
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 Alabama Power
Company.

1 The General Counsel filed an unopposed motion to correct transcript of record and
exhibit, which I hereby include in the record and grant.
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Respondent is an energy wholesaler in the competitive electricity 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 Wansley, Plant Franklin and Plant
Harris). It neither owns nor controls transmission facilities (other than interconnection
facilities) 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 Respondent is subject to regulation by the Federal Energy Regulatory Commission
(FERC).
Alabama Power and Georgia Power are two of Southern Company’s traditional public
retail utility subsidiaries. Alabama Power has about 6,800 employees, of whom about 2,700
are, and have been for over 60 years, represented by International Brotherhood of Electrical
Workers System Council U-19 and various IBEW locals, including Local 801. The most
recent 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 9,200 employees, of whom about 3,600 are,
and have been for many years, represented by IBEW Local 84. Georgia Power and Local 84
have been parties 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 request 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 Respondent Southern
Power at Plant Dahlberg, Plant Franklin, Plant Wansley and Plant Harris. While SCS
provides human resources and payroll functions for Respondent Southern Power, the
employees involved herein are employed on behalf of Respondent Southern Power.
Respondent’s generating facilities operate with comparatively 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); 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 services 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 collective 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 bargaining agreement under which Alabama
Power voluntarily recognized a new sub-local, Local 801-1 as the bargaining agent for a new,
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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
of 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 Southern Company.
In January 2006, Local 801-1 requested bargaining with Alabama 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, Alabama Power
continued to operate, maintain and repair all generating units at Plant Harris until January 25,
2008.
Plants Wansley, Dahlberg and Franklin. To meet its contractual 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 individuals were
employed by Georgia Power as GPOs at the above plants. However, beginning in March
2000 and continuing over the next two years, Georgia Power fully staffed all three plants with
GPOs, most of whom transferred from other Georgia Power facilities or other Southern
Company facilities. Since 2000, Georgia Power and Local 84 have negotiated successive
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
agreements 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 Respondent’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 labor services
arrangements with Alabama Power and Georgia Power with respect to the operation of
Plants Wansley, Dahlberg, Franklin and Harris and took over the operation, maintenance 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, individuals who were previously
employees of Alabama Power or Georgia Power at these facilities.
On or about January 11, 2008, Respondent made written offers of employment for
the newly minted OT positions at the four facilities involved to all GPOs employed by
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Alabama Power and Georgia Power at Plants Dahlberg, Franklin, Wansley and Harris.
Included in those offers was a document listing a summary of changes in terms and
conditions of employment 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 facilities in accordance with the applicable bargaining agreement with Local
801-1; and Georgia Power offered its affected employees the option to relocate and bid for
positions at other Georgia Power facilities in accordance with the applicable bargaining
agreement with Local 84.
At Plant Harris, all but one of the 17 affected employees accepted Respondent’s offer
of employment. At Plant Wansley, all but three of the 15 affected employees accepted
Respondent’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 employed at Plant Dahlberg; 21 OTs
employed at Plant Franklin; 12 OTs employed at Plant Wansley; and 16 OTs employed at
Plant Harris.
There were no changes in the terms and conditions of employment for the new OTs
hired at the four facilities by Respondent, 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 Local 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 Locat 801-1
for those employees. According to one of Respondent’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 employees 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 successor employer for the
OTs in the Alabama unit and that its refusal to bargain with Local 801-1 for the following
appropriate unit violated Section 8(a)(5) of the Act:
All operations technicians employed by the Respondent at Plant Harris,
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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 Supreme 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 contractual recognition by the predecessor, as here, that status continues
despite the change of employers. The focus of the successorship inquiry is on whether there
has been a “substantial continuity” 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 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 represented 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 facilities. The work and the working
conditions of the affected employees 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 substantial
continuity in the employing enterprise. Thus, given the Respondent’s hiring of a majority of
the workforce 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 pre-hire
agreements” because recognition was accorded before employees were hired in those units,
even though employees were shortly transferred into those unit positions from elsewhere in
the union-represented predecessor companies and the employees were covered under
successive collective 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
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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 practice must be brought
forward within six months of its occurrence under Section 10(b) of the Act. The Board has
specifically 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 Section
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 No. 19, slip op. 2 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 substantial continuity in the
employing entities because Respondent 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 evidence 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 precessors 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, according 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, 482 U.S. at 46 fn. 12. As the Seventh Circuit has
recognized, “the Board may treat a much reduced bargaining unit as a minature of the former

2 The General CounseI asserts (Br. 26-27) that the initial bargaining agreements
covering the Georgia Power and Alabama Power GPOs were not illegal pre-hire agreements,
but rather lawful clarifications of existing units. I agree. Respondent has not, on this record,
persuasively established that the agreements were illegal. They were simply attempts to
cover new classifications which were related to those historically 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. An
existing unit may be clarified to accomplish this result. See Premcor 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 predecessors, 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 affected employees at three of the
facilities. Tr. 51-53. In these circumstances, 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 Section 10(b) bar to its defense, Respondent is estopped from
raising at this late date an allegation that the employees initially hired to run those plants by
the predecessors were part of an illegal pre-hire arrangement. See Strand Theater of
Shreveport Corp., 346 NLRB 523, 536-537 (2006), enfd. 493 F.3d 515 (5th Cir. 2007).
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unit.” Zim’s 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).
In support of its contention, Respondent cites and relies upon Atlantic Technical
Services, 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 predessor’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 fraction” of the 14,000 employees in the companywide unit recognized 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 1,100 employees
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.” Moreover, TWA
was a large nationwide company, engaged primarily in transportation and related fields
governed under the Railway 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 enforcing 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 successorship issue. Machinists and Aerospace
Workers v. NLRB, 498 F.2d 680, 683 fn. 3 (D.C. Cir. 1974). Indeed, the Board itself
subsequently acknowledged 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 (previously GPOs)
at Plant Harris, all of whom had been covered under a separate bargaining agreement.
There was some diminution in the other unit since the OTs (previously GPOs) at the other
three facilities were part of a larger multi-plant 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, unike in Atlantic Technical, the successor
employer is not a small company that operates 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 jobs at Alabama Power and Georgia Power where
they could have retained union representation and instead decided to transfer into its
essentially non-union environment. From this premise, 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
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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 representation did not mean that
this was a matter to be proved or disproved 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 employees 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, 482 U.S. 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 unions based on circumstances surrounding its
takeover of the four facilities, namely that employees chose to keep their existing jobs with
the successor rather than to transfer to other unionized facilities of the predecessors. In any
event, the fact that employees took “non-union” 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 simlar argument was
rejected. Thus, not only does Respondent’s assertion that the employees rejected union
jobs at the predecessors to take its non-union jobs not amount to a loss of majority or even of
a good faith doubt of majority, but it is simply an incidental effect of the substantial continuity
of the employing enterprise when, as here, the successor hires a majority of the
predecessor’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
actual loss of majority. See Levitz Furniture Co., 333 NLRB 717, 725 (2001); and Siemens
Building Technologies, supra, 345 NLRB at 1109. This Respondent has failed to do.
Respondent also contends (Br. 31-32) that it cannot be a legal 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 disingenuous since Respondent owned the plants in question,
and, previous 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”
successorship 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 subcontracted operation. See Saks Fifth
Avenue, 247 NLRB 1047 (1980), enfd. in part 634 F.2d 681 (2nd Cir. 1980); and Cablevision
Systems Development Co., 251 NLRB 1319 (1980), enfd. 671 F.2d 737 (2nd 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
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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 successorship bargaining obligation that the unit in which it is required to
bargain is an inappropriate unit. It is also well settled that single plant units are
presumptively appropriate, even in a successorship 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
effectively merged into a more comprehensive unit, or is so functionally 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 attempt 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 employees 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 multi-employee, multi-plant unit under the predecessor, 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 units at each of Plant Wansley, Plant Franklin
and Plant 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 involved here were part of a much broader multi-plant unit
of Georgia Power employees. Indeed, both Ready Mix and another 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 predecessor and all had been included in a single bargaining
unit. In Children’s Hospital, the predecessor’s unit was a presumptively appropriate single
unit facility. Thus, neither case supports the position that the three-plant former Georgia
Power unit is an 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
purchased some, but not all, of the plants in the predecessor’s multi-plant unit. The Board
nevertheless found that there was a substantial continuity of the employing entity. But it also
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found that the purchased grouping was an appropriate unit. Unlike in this case, however, the
successor in White-Westinghouse created a subsidiary specifically formed to hold the plants
purchased 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 present 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 bargain 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 demand was limited to the three-facility unit it formerly represented
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
cannot 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, 318 NLRB at 739. Nor does anything in Respondent’s
argument that the three-plant unit was inappropriate 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 majority status in the overall unit because of the substantial continuity of the
employing entity. Thus, each of the single plant units can be viewed as “a minature” of the
three plant unit. See Zim’s Foodliner v. NLRB, supra, 495 F.2d 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 Respondent, 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

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 appropriate.” Br. 22. But, in that case, the Board simply corrected the
judge’s “inadvertent” failure to include a unit description in his decision. To the extent that
the Board commented on the appropriate unit issue in its footnoted discussion, the Board
simply stated that the bargaining unit alleged in the complaint “is essentially the same as the
unit described in the collective bargaining agreement between the predecessor (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 bargaining 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.
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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 appropriate unit:
All operations technicians employed by Respondent at Plant Harris, excluding
all other employees, office clerical employees, professional employees,
guards and supervisors, as defined 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 3 appropriate 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.
(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 respects, I shall recommend
that it cease and desist from engaging 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 notice.
On these findings of fact and conclusions of law, and on the entire record herein, I
issue the following recommended:5
ORDER
The Respondent, Southern Power Company, its officers, agents, successors and
assigns, shall:
1. Cease and desist from:

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 purposes.
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(a) Failing and refusing to recognize and bargain with Local 801-1 as the
exclusive bargaining representative of the employees in the following appropriate unit:
All operations technicians employed by Respondent at Plant Harris, excluding
all other employees, office clerical employees, professional employees,
guards and supervisors, as defined 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 clerical employees, professional
employees, guards and supervisors, as defined in the Act.
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.
(c) In any like or related manner, interfering with, restraining or coercing
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate 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 bargain 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 facilities at
Plants Harris, Dahlberg, Franklin and Wansley copies 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 representative, shall be posted by
Respondent and maintained for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices 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 facilities 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

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 National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.
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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.
Dated, Washington, D.C., November 3, 2008.
__________________
Lawrence W. Cullen
Administrative Law Judge
JD(ATL)–41–08
Atlanta, GA
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 violated 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
supervisors, 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 units:
All operations technicians employed by us 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 us at Plant Franklin, excluding all other
employees, office clerical employees, professional employees, guards and
supervisors, as defined in the Act.
All operations technicians employed by us at Plant Wansley, excluding all other
employees, office clerical employees, professional employees, guards and
supervisors, as defined in the Act.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the
exercise of their rights under 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 employees it represents in the above appropriate units of employees at Plants
Dahlberg, Franklin and Wansley.
SOUTHERN POWER COMPANY
(Employer)
Dated By
(Representative) (Title)
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The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
233 Peachtree Street NE, Harris Tower, Suite 1000
Atlanta, Georgia 30303-1531
Hours: 8 a.m. to 4:30 p.m.
404-331-2896.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 404-331-2877.