FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 17, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 98-8454-EE

 

GEORGIA POWER COMPANY, 

Petitioner-Cross-Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

______________________________________________________

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO, CLC Local No. 84,

Intervenor. 

--------------------------

On Application for Enforcement of an Order

of the National Labor Relations Board

--------------------------

BEFORE: MARCUS and HILL, Circuit Judges, and ADAMS,* District Judge. 

MARCUS, Circuit Judge:

__________________________________________________________________

* Honorable Henry Lee Adams, Jr., United States District Judge for the Middle District of

Florida, sitting by designation.
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Now pending before theCourt is a Petition for Adjudication of Civil Contempt,

in which the National Labor Relations Board (“Board”) alleges that Georgia Power

Company (“Georgia Power”) is in contempt of this Court’s March 8, 1999 Judgment

in this matter. After reviewing the Board’s contempt petition, we directed Georgia

Power to file an Answer and directed the Board to provide this Court with copies of

any documentation which it believed supported the allegations of its Petition for Civil

Contempt. On December 12, 2006, we issued an ORDER TO SHOW CAUSE why

Georgia Power Company should not be held in civil contempt of this Court’s

judgment in Georgia Power Co. v. NLRB, 176 F.3d 494 (11th Cir. 1999) (table), aff’g

& enf’g, Georgia Power Co., 325 N.L.R.B. 420 (1998). After reviewing the materials

submitted by the parties, we DENY the Petition for Adjudication of Civil Contempt.

This action arises from an unfair-labor-practice complaint filed with the Board

alleging that Georgia Power unilaterally changed working conditions for employees

represented by the International Brotherhood of Electrical Workers Local 84,

AFL-CIO-CLC (“Union”). More specifically, the Union claimed that Georgia Power

unilaterally, that is, without collective bargaining, modified the Other

Post-Retirement Benefits (“OPRB”), including future retirees’ life and medical

benefits, of current employees, in violation of Sections 1 and 8(a)(5) of the National

Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, 158(a)(5). The Board found that
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Georgia Power’s unilateral decision to limit the company-paid portion of the

premiums for its future retirees’ OPRB, in the form of medical and life insurance

benefits, violated Sections 1 and 8(a)(5) of the NLRA. As a result, Georgia Power

was directed, inter alia, to cease and desist from making unilateral changes to its

bargaining unit employees’ OPRB without providing notice of the proposed changes

and an adequate opportunity to the Union to bargain about those changes, as well as

from interfering with, restraining, or coercing its employees in the exercise of rights

guaranteed to them by Section 7 of the NLRA. Specifically, the Board’s order

directed that Georgia Power shall:

1. Cease and desist from

(a) Making unilateral changes in bargaining unit employees’ OPRB

without providing notice of the proposed changes and adequate

opportunity for the Union to bargain about those changes.

(b) In any like or related manner interfering with, restraining, or

coercing its employees in the exercise of rights guaranteed them by

Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the

policies of the Act.

(a) On request, bargain collectively with International Brotherhood of

Electrical Workers Local 84, AFL-CIO-CLC as exclusive representative

of the employees in the appropriate bargaining unit described in article

II, section 2 of their collective-bargaining agreement (memorandum of

agreement) and, if an understanding is reached, embody that

understanding in a signed contract.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as 1

binding precedent all cases decided by the Fifth Circuit, including both Units A and B, prior to

October 1, 1981.

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(b) Restore OPRB to the pre-April 21, 1995, level.

Georgia Power Co., 325 N.L.R.B. at 427. On March 8, 1999, this Court entered a

decree affirming and enforcing the Board’s order. Georgia Power Co. v. NLRB, 176

F.3d 494 (11th Cir. 1999) (table).

Following entry of our judgment in 1999, from 2000 to 2001, Georgia Power

and the Union engaged in good-faith negotiations, the scope of which included

discussion of the bargaining-unit employees’ OPRB. The parties reached an impasse

during their 2000-2001 negotiations, after which Georgia Power implemented its

“last, best and final offer” based on the company’s interpretation of “the impasse

rule,” which provides that “following good-faith negotiations, . . . a party generally

may take unilateral action with respect to a mandatory subject of bargaining over

which impasse has been reached.” NLRB v. McClatchy Newspapers, Inc., 964 F.2d

1153, 1155 (D.C. Cir. 1997) (per curiam) (Edwards, J., concurring); see also NLRB

v. Bancroft Mfg. Co., 635 F.2d 492, 494 (5th Cir. Unit A Jan. 1981) (“‘Impasse’

within the meaning of the federal labor laws presupposes a reasonable effort at

good-faith bargaining which, despite noble intentions, does not conclude in an

agreement between the parties.” (quotation marks omitted)). The Union filed no 1
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unfair-labor-practice complaint challenging the foregoing implementation pursuant

to Georgia Power’s interpretation of the impasse rule.

Thereafter, on September 30, 2004, Georgia Power distributed a memorandum

to its employees in which it announced two changes to current employees’ OPRB: (1)

a change in the method for coordination of benefits between the Georgia Power

Medical Plan and other insurers, and (2) the implementation of a premium

contribution for retirees after they turned 65. Those changes became effective on

January 1, 2005. Along with that memorandum, Georgia Power provided a document

entitled “Highlights of Changes to the Southern Company Services, Inc. Healthcare

Plan.” In addition to describing the changes to the Medical Plan, the memorandum

stated that “Future changes to retiree health care premiums for current active

employees may be announced at the discretion of the Plan Administrator.” The

Union filed no unfair-labor-practice complaint challenging the foregoing changes.

By letter dated October 21, 2004, the Union advised Georgia Power that it

opposed the proposed changes to the Medical Plan and indicated its view that the

issue was properly a subject of bargaining and must be negotiated with the Union. 

In an April 6, 2005 letter in response, Georgia Power advised the Union that:

(1) because the proposed changes affected only retirement benefits, they were not

subject to negotiations with the Union; (2) even if the changes were subject to
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negotiations, the Union had already accepted those changes by not objecting in 2002,

when the changes were implemented, or in 2003, when the Union agreed to allow its

members to participate in the Blue Cross/Blue Shield medical plan, or both; and (3)

after the parties reached an impasse during their 2000-2001 good-faith negotiations,

the company implemented its “last, best and final offer.”

Over a year later, on July 17, 2006, the Board filed this Petition for

Adjudication of Civil Contempt. The Board asks that Georgia Power be found in

contempt of this Court’s March 8, 1999 Judgment, and that Georgia Power be ordered

to purge itself of the contempt by, among other things, rescinding the 2004 changes,

making whole employees who have been affected by the changes, posting notices of

the contempt finding, and payment of the Board’s costs and expenses. The Board

also says this Court should direct Georgia Power to make immediate payment of

$50,000 into the District Court for the Northern District of Georgia’s registry as a

“conditional fine” to be remitted upon performance of the other proposed purging

actions.

We will make a finding of civil contempt -- that is, willful disregard of the

authority of this Court -- only upon a showing that the alleged contempt is clear and

convincing. See McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000); NLRB

v. Crockett-Bradley, Inc., 598 F.2d 971, 975 (5th Cir. 1979). “This burden of proof
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is more exacting than the ‘preponderance of the evidence’ standard but, unlike

criminal contempt, does not require proof beyond a reasonable doubt.” Jordan v.

Wilson, 851 F.2d 1290, 1292 (11th Cir. 1988)(per curiam). The clear and convincing

evidence must establish that: (1) the allegedly violated order was valid and lawful;

(2) the order was clear and unambiguous; and (3) the alleged violator had the ability

to comply with the order. McGregor, 206 F.3d at 1383 (emphasis added). Our

disposition of the instant Petition concerns the second element of the standard for a

finding of civil contempt.

“In determining whether a party is in contempt of a court order, the order is

subject to reasonable interpretation, though it may not be expanded beyond the

meaning of its terms absent notice and an opportunity to be heard.” Riccard v.

Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002). Moreover, we will

construe any ambiguities or uncertainties in such a court order in a light favorable to

the person charged with contempt. NBA Properties, Inc. v. Gold, 895 F.2d 30, 32

(1st Cir. 1990). Our focus in a civil contempt proceeding “is not on the subjective

beliefs or intent of the alleged contemners in complying with the order, but whether

in fact their conduct complied with the order at issue.” Howard Johnson Co., Inc. v.

Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990). 
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Here, the Board argues that Georgia Power’s participation in the ultimately

unsuccessful negotiations over the OPRB and its right to unilaterally change OPRB

was insufficient to permit the implementation of changes to the OPRB or of the

unilateral ability to make future changes, pursuant to the impasse rule. In short, given

the procedural posture of the instant application, we need not, and do not, reach the

Board’s ultimate argument concerning the scope of the impasse doctrine, since our

inquiry in a civil contempt proceeding is narrowly proscribed and encompasses only

whether Georgia Power’s post-judgment conduct, including its interpretation of the

impasse rule after the unsuccessful negotiations, in fact, complied with our March 8,

1999 Judgment in this matter. 

The clear and unambiguous language of the Board’s order, which we affirmed

and enforced in our March 8, 1999 Judgment, prohibited Georgia Power from

“[m]aking unilateral changes in bargaining unit employees’ OPRB without providing

notice of the proposed changes and adequate opportunity for the Union to bargain

about those changes.” Georgia Power Co., 325 N.L.R.B. at 427. The undisputed

facts show that the Union necessarily had notice of the proposed changes to the

current employees’ OPRB, by virtue of the Union’s participation in the 2000-2001

negotiations, which resulted in an impasse. Moreover, there is no dispute that the

Union had the opportunity to participate, and in fact did participate, in negotiations
 The parties apparently dispute whether the 2000-2001 negotiations included discussions 2

about the general right sought by Georgia Power to unilaterally make changes in the future to current

employees’ OPRBs. Regardless of whether Georgia Power gave the Union notice and the

opportunity to bargain over this general right, however, the plain terms of the Board’s decision,

which we enforced, Georgia Power Co., 176 F.3d 494, did not address that issue. See Doe v. Bush,

261 F.3d 1037, 1062 (11th Cir. 2001) (“[A]ny ambiguities in a judgment are to be construed in favor

of the alleged contemnor.” (citing NBA Props., Inc., 895 F.2d at 32)). Therefore, even if the Board

is correct that Georgia Power did not provide the Union with notice and an opportunity to bargain

over the general right to make future unilateral changes, that does not warrant holding Georgia

Power in civil contempt. We offer no opinion on the legality of Georgia Power’s conduct under

the NLRA or whether an unfair-labor-practice complaint lies based on that conduct, as that is a

matter for the Board, not the courts, to adjudicate in the first instance. Cf. Computer Sciences Corp.

v. NLRB, 677 F.2d 804, 807-08 (11th Cir. 1982) (dismissing Board’s petition for contempt where

Board had not adjudicated underlying unfair-labor-practice complaint; “Reasons akin to those

underlying the doctrine of exhaustion of administrative remedies persuade us that it is ill-advised to

resolve these highly factual and close issues before the agency possessing expertise in these matters

has passed upon the question . . . .”). On this record, a judicial determination of the legality of

Georgia Power’s conduct under the NLRA is better postponed until there has been agency action.

Id. at 807.

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over the changes to current employees’ OPRB. It was only after the parties

participated in good-faith negotiations that Georgia Powerimplemented its “last, best

and final offer,” pursuant to which Georgia Power made the 2005 Plan amendments

the Board now challenges. The Board’s argument that the NLRA prohibits Georgia

Power’s implementation, pursuant to the impasse doctrine, of the “last, best and final

offer” is misplaced since our inquiry is limited to whether the “four corners” of this

Court’s judgment, in clear and unambiguous terms, prohibited Georgia Power’s

conduct, and not whether that conduct was a violation of the NLRA in the first

instance.2
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On the record before us, we cannot conclude that the Board has established, by

clear and convincing evidence that Georgia Power’s actions -- Georgia Power’s

actions, of course, would encompass its interpretation of the impasse rule in light of

our March 8, 1999 Judgment -- were based on an unreasonable interpretation of the

clear and unambiguous directive of our order enforcing the Board’s decision in this

matter. Accordingly, we DENY the Petition for Adjudication of Civil Contempt.

We DENY AS MOOT Georgia Power’s Motion to Dismiss, the Board’s

Motion for Summary Adjudication, and Georgia Power’s Cross-motion for Summary

Adjudication. 

We GRANT Georgia Power’s Motion for leave to file a Reply Brief.