United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2007 Decided May 6, 2008 

No. 07-1035 

SOUTHERN NUCLEAR OPERATING COMPANY, ET AL., 

PETITIONERS

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

Consolidated with 

07-1067 

On Petition for Review and Cross-Application for 

Enforcement 

of an Order of the National Labor Relations Board 

Seth T. Ford argued the cause for petitioners. With him 

on the briefs were Robert H. Buckler and Evan H. Pontz. 

Jeffrey J. Barham, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the brief 

were Ronald E. Meisburg, General Counsel, John H. 

Ferguson, Associate General Counsel, Linda Dreeben, 

Assistant General Counsel, and Fred B. Jacob, Supervisory 

Attorney. 
2 

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

GRIFFITH, Circuit Judge: In 2000, four subsidiaries of the 

Southern Company made modifications to the health-care and 

life-insurance benefits of their future retirees without 

negotiating with their employees’ unions. The unions filed 

unfair labor practice charges against these subsidiaries, and 

the National Labor Relations Board determined that the 

subsidiaries violated Sections 8(a)(1) and 8(a)(5) of the 

National Labor Relations Act by making the changes without 

bargaining collectively. The subsidiaries petitioned for 

review, and the Board cross-applied for enforcement of its 

order. 

We grant the petition in part and the cross-application in 

part. We agree with the Board that the National Labor 

Relations Act did not leave the subsidiaries free to make the 

changes to the retirement benefits without first bargaining 

collectively. We also agree with the Board that the unions did 

not waive their bargaining rights in the course of their 

dealings with the subsidiaries. We agree with the subsidiaries, 

however, that the unions contractually surrendered their 

bargaining rights with respect to the health-care retirement 

benefits of three of the subsidiaries. In all other respects, we 

enforce the Board’s order. 

I. 

The Southern Company (“Southern”) is an electric utility 

that owns several subsidiary companies. Four of these 

subsidiaries — the Southern Nuclear Operating Company 
3 

(“SNOC”),1

 the Alabama Power Company (“APC”),2 the 

Georgia Power Company (“GPC”),3

 and the Gulf Power 

Company (“Gulf”)4 — offer their employees a package of 

health-care and life-insurance retirement benefits.5 Unlike 

pension benefits, which vest while an employee is still 

working, these so-called Other Post-Retirement Benefits 

(“OPRBs”) vest only if and when an employee actually retires 

from his employer. An employee who leaves prior to 

retirement cannot claim the OPRB package. 

These OPRBs are described in benefit-plan guides, which 

are provided to the subsidiaries’ employees and their unions. 

Some of these guides have a “reservation-of-rights clause” 

that grants the employer the right to “terminate or amend this 

Plan in whole or in part, including but not limited to any 

Benefit Option described herein, at any time so long as any 

participant is reimbursed for any covered expenses already 

incurred under this Plan.” 

 

1

 Employees at SNOC’s Vogtle and Hatch plants are represented by 

International Brotherhood of Electrical Workers Local Union 

(“Local”) 84. Employees at SNOC’s Farley plant are represented by 

Local 796, which has delegated its bargaining authority to System 

Council U-19, a consortium of local unions. See infra Part IV. 

2

 APC’s employees are represented by Locals 345, 833, 904, 391, 

801, 841, 1053, 796, and 2077 (“APC Locals”). The APC Locals 

have delegated their bargaining authority to System Council U-19.

See infra Part IV. 

3

 GPC’s employees were, at the time of the events giving rise to this 

case, represented by Local 1208. GPC is a successor employer to 

Savannah Electric and Power Company (“SEP”), which was a party 

to the proceedings before the Board. Once SEP merged into GPC, 

Local 1208 became part of Local 84. 

4

 Gulf’s employees are represented by Local 1055. 

5

 The benefit policies of the other Southern subsidiaries are 

immaterial to this case. 
4 

The four subsidiaries (collectively “the Companies”) and 

other Southern affiliates decided in 1995 that, effective in 

2002, they would make two major changes to the OPRB 

package. First, they would end their practice of paying all 

health-care premiums for retirees and would instead pay only 

60 to 90 percent of each retiree’s premiums up to $7500 

annually. Second, they would alter their life-insurance 

payment policy for retirees by providing $2000 life insurance 

for every year of a retiree’s accredited service, up to a 

maximum of $50,000. (We will refer to these changes as the 

“1995 changes” or “1995 modifications.”) The changes were 

to apply to all employees except those who had either already 

retired or worked a minimum period of time by the effective 

date. The employers made the changes without giving the 

employees’ unions advance notice or an opportunity to 

negotiate. Many of the unions acquiesced in the changes, but 

the unions at Southern’s Georgia and Mississippi subsidiaries 

filed unfair labor practice charges with the National Labor 

Relations Board (“Board”). See Ga. Power Co. v. NLRB, 176 

F.3d 494 (11th Cir. 1999), aff’g without opinion, Ga. Power 

Co., 325 N.L.R.B. 420 (1998); Miss. Power Co. v. NLRB, 284 

F.3d 605 (5th Cir. 2002), vacating in part and enforcing in 

part, Miss. Power Co., 332 N.L.R.B. 530 (2000). 

In 2000, the Companies decided to postpone the effective 

date of the changes until 2006 and to expand the number of 

employees exempted from the modifications. (We will refer 

to these decisions as the “2000 changes” or “2000 

modifications.”) The unions asked to bargain, but the 

Companies rejected the requests. 

The unions filed unfair labor practice charges against the 

Companies, and the Board determined that their failure to 

bargain had violated Sections 8(a)(1) and 8(a)(5) of the 

National Labor Relations Act (“NLRA”). See S. Nuclear 
5 

Operating Co., 348 N.L.R.B. No. 95, 2006 NLRB LEXIS 539 

(2006). The Companies now petition for review, and the 

Board cross-applies for enforcement of its order. We have 

jurisdiction under 29 U.S.C. § 160(e)–(f), and must sustain 

the Board’s decision “unless, reviewing the record as a whole, 

it appears that the Board’s factual findings are not supported 

by substantial evidence, or that the Board acted arbitrarily or 

otherwise erred in applying established law to the facts at 

issue.” Int’l Alliance of Theatrical & Stage Employees v. 

NLRB, 334 F.3d 27, 31 (D.C. Cir. 2003) (citation omitted). 

II. 

The Companies ask us to set aside the Board’s conclusion 

that they were required to bargain collectively before making 

the 2000 changes. We first consider the Companies’ argument 

that the NLRA left them free to make the changes 

unilaterally. 

Section 8(a)(5) of the NLRA makes it an unfair labor 

practice for an employer to “refuse to bargain collectively 

with the representatives of his employees.” 29 U.S.C.

§ 158(a)(5). Section 8(d) requires employers to bargain 

collectively before introducing changes “with respect to 

wages, hours, and other terms and conditions of 

employment.” Id. § 158(d). An employer violates Section 

8(a)(5) by making any unilateral changes to the mandatory 

bargaining subjects covered by Section 8(d). NLRB v. Katz, 

369 U.S. 736, 743 (1962).6

 The Companies argue that their 

 

6

 A violation of Section 8(a)(5) is also a violation of Section 

8(a)(1), which makes it an unfair labor practice for an employer to 

“interfere with, restrain, or coerce employees in the exercise” of 

their statutory right to bargain collectively through representatives 

of their own choosing. 29 U.S.C. § 158(a)(1); see also Brewers & 
6 

unilateral changes to the OPRBs were permissible because the 

future retirement benefits of current employees are not 

mandatory bargaining subjects under Section 8(d). We are not 

persuaded. 

The governing principle is found in Allied Chemical & 

Alkali Workers of America, Local Union No. 1 v. Pittsburgh 

Plate Glass Co., 404 U.S. 157 (1971). In that case, the 

Supreme Court held that retirement benefits for workers who 

have already retired are not mandatory bargaining subjects 

because retirees are not “employees” under the NLRA and are 

therefore not protected by the Act. See id. at 168 (“The 

ordinary meaning of ‘employee’ does not include retired 

workers; retired employees have ceased to work for another 

for hire.”). But the Court also made clear that retirement 

benefits for current employees are mandatory bargaining 

subjects: “To be sure, the future retirement benefits of active 

workers are part and parcel of their overall compensation and 

hence a well-established statutory subject of bargaining.” Id.

at 180. Because the 2000 modifications affected future 

retirement benefits of current employees, the Companies were 

required to bargain over them with the unions. 

The Companies argue that the statement in Pittsburgh 

Plate Glass about future retirement benefits is a dictum and 

should not supply a rule of decision in this case. We have 

more faith than do the Companies in Supreme Court 

declarations that begin with “To be sure . . . .” See United 

States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (stating 

that “carefully considered language of the Supreme Court, 

even if technically dictum, generally must be treated as 

authoritative”) (quotation marks omitted). But even if the 

 

Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 41 (D.C. Cir. 

2005). 
7 

question were an open one, the Companies’ argument fails 

because “classification of bargaining subjects as ‘terms [and] 

conditions of employment’ is a matter concerning which the 

Board has special expertise.” Local Union No. 189, 

Amalgamated Meat Cutters & Butcher Workmen of N. Am. v.

Jewel Tea Co., 381 U.S. 676, 685–86 (1965); see also Ford 

Motor Co. v. NLRB, 441 U.S. 488, 497 (1979) (“Construing 

and applying the duty to bargain . . . [lies] at the heart of the 

Board’s function.”). The Board has decided that future 

retirement benefits fit in Section 8(d)’s basket of mandatory 

bargaining subjects. This decision, particularly in light of the 

Board’s expertise, is rational and therefore lawful. See id. at 

495 (noting that the Board’s “judgment as to what is a 

mandatory bargaining subject is entitled to considerable 

deference”). No one could doubt that current employees are 

rightly concerned about the retirement benefits that they will 

receive in the future. Giving them the right to bargain 

collectively over those benefits is certainly sensible. 

Alternatively, the Companies argue that including future 

vested retirement benefits in Section 8(d) might be acceptable, 

but including future non-vested retirement benefits — like the 

ones here — is unacceptable. It is doubtful, however, that 

current workers are not affected by the OPRBs merely 

because the OPRBs are not “vested.” The possibility of 

obtaining the OPRBs by continuing to work for and then 

retiring from an employer may well induce an employee to 

continue with that employer and may well affect the present 

compensation he is willing to accept from his employer. 

Moreover, in concluding that future retirement benefits for 

current employees are a mandatory bargaining subject, we are 

in accord with the other circuit courts that have decided the 

issue. See Miss. Power Co., 284 F.3d at 614; Ga. Power Co., 

176 F.3d 494, aff’g without opinion, 325 N.L.R.B. at 420; 

Inland Steel Co. v. NLRB, 170 F.2d 247, 250–51 (7th Cir. 
8 

1948); see also Am. Postal Workers Union v. U.S. Postal 

Serv., 707 F.2d 548, 555 (D.C. Cir. 1983) (dictum). 

The Companies also contend that it would be folly to 

require bargaining because their 2000 modifications did not 

amount to much. We recognize that “in order for a statutory 

bargaining obligation to arise with respect to a particular 

change unilaterally implemented by an employer, such change 

must be a ‘material, substantial, and [] significant’ one 

affecting the terms and conditions of employment of 

bargaining unit employees.” Alamo Cement Co., 281 

N.L.R.B. 737, 738 (1986). But if changes to cafeteria prices,

see Ford Motor Co., 441 U.S. at 497–98, and the timing of 

lunch breaks, see Microimage Display Div. of Xidex Corp. v. 

NLRB, 924 F.2d 245, 253 (D.C. Cir. 1991), require 

bargaining, then we have no trouble concluding that the 2000 

changes to retirement benefits do as well. 

The Companies suggest that our decision will create a 

perverse incentive for employers to spring unilateral changes 

on workers only after they retire, thereby avoiding Pittsburgh 

Plate Glass’s prohibition on unilateral changes to the 

retirement benefits of future retirees. We are without authority 

to consider this policy argument, which should be directed to 

Congress or the Board, not to us. 

III. 

 Having found that the NLRA does not shield the 

Companies’ unilateral changes to the OPRBs in 2000, we turn 

to the Companies’ argument that the unions surrendered their 

right to bargain over the 2000 changes through either waiver 

or contract. 

 

A. Waiver 
9 

“A waiver occurs when a union knowingly and 

voluntarily relinquishes its right to bargain about a matter. . . . 

[W]hen a union waives its right to bargain about a particular 

matter, it surrenders the opportunity to create a set of 

contractual rules that bind the employer, and instead cedes 

full discretion to the employer on that matter. For that reason, 

the courts require ‘clear and unmistakable’ evidence of waiver 

and have tended to construe waivers narrowly.” Dep’t of the 

Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57 

(D.C. Cir. 1992). “[C]lear and unmistakable waivers have 

been inferred from the structure of collective bargaining 

agreements and from bargaining history showing that the 

parties have ‘consciously explored’ or ‘fully discussed’ the 

matter on which the union has ‘consciously yielded’ its 

rights.” Gannett Rochester Newspapers v. NLRB, 988 F.2d 

198, 203 n.2 (D.C. Cir. 1993) (citations omitted). The 

Companies contend that the unions, by not negotiating over 

the 1995 modifications and by not challenging the wording of 

the reservation-of-rights clauses in the benefit-plan guides, 

waived their right to bargain over the 2000 changes. We 

disagree because neither event clearly and unmistakably 

demonstrates that the unions waived any right they may have 

had to bargain over the 2000 changes. 

The unions’ conduct pertaining to the 1995 modifications 

has no bearing on their right to bargain over the 2000 

changes. The two episodes were separate and independent 

events. The Companies made changes to the OPRBs in 1995; 

then in 2000, they made another round of modifications. 

Certainly, nothing in the history of the 1995 changes suggests 

the unions consciously explored or fully discussed the 2000 

changes and then voluntarily relinquished their right to 

bargain over them. The fact that the unions may have waived 

their bargaining rights in 1995 — an issue we need not 
10 

address — does not undermine their bargaining rights in 

2000. As the Board has long held, “[i]t is well settled that 

even past failure to assert a statutory right does not estop 

subsequent assertion of that right.” Rockwell Int’l Corp., 260 

N.L.R.B. 1346, 1347 n.6 (1982); see also Ciba-Geigy 

Pharms. Div. v. NLRB, 722 F.2d 1120, 1127 (3d Cir. 1983) 

(“Each time the bargainable incident occurs . . . [the] Union 

has the election of requesting negotiations or not.”) (quotation 

marks omitted); NLRB v. Roll & Hold Warehouse & Distrib. 

Corp., 162 F.3d 513, 518 (7th Cir. 1998) (“The failure to 

demand bargaining in the past, without more, does not waive 

that bargaining right forever.”). 

The unions’ failure to negotiate over the reservation-ofrights clauses is likewise independent of the Companies’ 2000 

modifications. Nothing in the record suggests that the unions, 

by not negotiating over the clauses, contemplated waiving 

their right to bargain in 2000. Absent such indication, we 

cannot conclude that the unions clearly and unmistakably 

decided to waive their bargaining rights in 2000. 

 

B. Contract 

“[T]he duty to bargain under the NLRA does not prevent 

parties from negotiating contract terms that make it 

unnecessary to bargain over subsequent changes in terms or 

conditions of employment.” NLRB v. U.S. Postal Serv., 8 F.3d 

832, 836 (D.C. Cir. 1993). In determining whether a union 

has contractually surrendered its statutory right to bargain, we 

apply the aptly named “covered by” doctrine: “[T]here is no 

continuous duty to bargain during the term of [a collectivebargaining] agreement with respect to a matter covered by the 

contract.” Id. “[T]he normal deference we must afford the 

Board’s policy choices does not apply in this context . . . .” 

Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 837 (D.C. Cir. 2005). 
11 

Instead, “we interpret collective bargaining agreements de 

novo.” Id. at 839 n.4.7

The Companies’ argument is divided into two parts. First, 

they contend that their collective-bargaining agreements with 

the unions incorporated the benefit plans’ reservation-ofrights clauses on the basis of the unions’ “course of conduct.” 

For instance, the Companies suggest that because the unions 

have copies of the benefit plans and have relied on the 

benefits provided by those plans, the unions have also 

incorporated the reservation-of-rights clauses in those plans 

into the collective-bargaining agreements. Our cases, 

however, imply that it is only express language in the 

collective-bargaining agreement that incorporates a 

reservation-of-rights clause. Cf. Local Union No. 47, Int’l 

Bhd. of Elec. Workers v. NLRB, 927 F.2d 635, 640 (D.C. Cir. 

1991) (“The union may exercise its right to bargain about a 

particular subject by negotiating for a provision in the 

collective bargaining contract that fixes the parties’ rights and 

forecloses further mandatory bargaining as to that subject.”) 

(emphasis added). 

Second, the Companies assert that the collectivebargaining agreements incorporated the reservation-of-rights 

clauses by express reference. Here, the Companies are on 

firmer ground. In BP Amoco Corp. v. NLRB, we held that 

when a collective-bargaining agreement expressly 

incorporates a benefit plan, all the plan’s clauses, including 

 

7

 As we have said many times, “[t]he ‘covered by’ and ‘waiver’ 

inquiries are analytically distinct: A waiver occurs when a union 

knowingly and voluntarily relinquishes its right to bargain about a 

matter; but where the matter is covered by the collective bargaining 

agreement, the union has exercised its bargaining right.” BP Amoco 

Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir. 2000) (quotation 

marks omitted). 
12 

any reservation-of-rights clauses, are also incorporated into 

the agreement, “thereby authoriz[ing] [the employer] to 

unilaterally modify the [plan] without the Union’s consent.” 

217 F.3d 869, 874 (D.C. Cir. 2000). In that case, we were 

faced with several agreements and were asked to decide 

whether they incorporated benefit plans by reference. Some of 

the agreements referred to “Employee Benefit Plans” and 

“Benefits Plan Booklets.” Id. at 873.8

 Others referred to 

“[b]enefit plans for the Company.” Id. at 873.9

 We concluded 

that “[i]n each case, the quoted language explicitly makes the 

plans a part of the collective bargaining agreement.” Id. at 

874. Because the plans contained reservation-of-rights clauses 

that allowed the employer to make unilateral changes, it was 

free to do so. Id. With BP Amoco in mind, we consider the 

Companies’ collective-bargaining agreements one by one: 

APC: APC’s collective-bargaining agreement identifies 

the health-care plans offered to its employees. Under BP 

Amoco, such direct references incorporate the plans. APC 

could unilaterally modify its health-care plans because they 

included a reservation-of-rights clause stating that “[t]he 

company has the right and may terminate or amend this Plan 

in whole or in part, including but not limited to any Benefit 

Option described herein.” By contrast, APC was not 

authorized to modify the life-insurance OPRBs because, 

regardless whether the collective-bargaining agreement 

 

8

 Specifically, they “recite[d] that specified Employee Benefit 

Plans, including the Amoco Medical Plan, are generally set forth in 

the current Benefits Plan Booklets.” 217 F.3d at 873 (quotation 

marks omitted). 

9

 Specifically, they stated that “[b]enefit plans for the Company . . . 

will continue in force during the life of this Agreement with the 

understanding that these Plans may be bargained upon but will not 

be subject to arbitration.” 217 F.3d at 873–74 (quotation marks 

omitted). 
13 

incorporated a life-insurance plan, there is no record evidence 

of any reservation-of-rights clause relating to life insurance. 

GPC: The GPC collective-bargaining agreement states 

that “the Unions agree to waive negotiations on all issues 

regarding the ‘Georgia Power Company Medical Benefits 

Plan.’ ” This language unambiguously forecloses the unions’ 

right to bargain over the medical benefits for GPC employees, 

regardless whether the agreement also incorporates a 

reservation-of-rights clause. GPC therefore was authorized to 

unilaterally modify the health-care OPRBs in 2000.10

However, the GPC agreement makes no reference to GPC’s 

life-insurance plan, so GPC had no authority to modify its 

life-insurance OPRBs. 

Gulf: The Companies do not argue that the Gulf 

collective-bargaining agreement incorporates by reference a 

reservation-of-rights clause. Gulf was therefore not authorized 

to modify either its health-care or life-insurance OPRBs. 

SNOC (Farley plant): The collective-bargaining 

agreement for the Farley plant refers to SNOC’s “insurance 

plans.”11 Reference in the next sentence of the agreement to 

“medical insurance rates” suggests that the health-insurance 

 

10 We note that the bargaining-waiver provision in the collectivebargaining agreement does not apply to issues relating to “the ratio 

of employee and employer contributions” for GPC’s medicalbenefit plan. However, the Board did not argue that this exception 

is relevant to the 2000 changes. We therefore have no need to 

decide whether the exception is applicable to the changes at issue in 

this case. 

11 The agreement says that Farley employees “will be placed on 

Southern Nuclear Operating Company’s insurance plans at the 

applicable rates for Southern Nuclear Operating Company as they 

exist during the life of the agreement.” 
14 

plan is among the “insurance plans” to which the agreement 

refers. Though vague, this reference to the health-insurance 

plan is clearer than the references in BP Amoco that we used 

to find that the insurance plan was part of the collectivebargaining agreement. The reservation-of-rights clause in the 

Farley health-care plan states that “[t]he company has the 

right and may terminate or amend this Plan in whole or in 

part, including but not limited to any Benefit Option described 

herein.” As we concluded with respect to the same clause in 

APC’s health-care plans, that language authorizes the 

unilateral modification of the health-care OPRBs. But 

regardless whether the collective-bargaining agreement 

incorporated a life-insurance plan, we conclude that the 

Farley plant was not authorized to modify the life-insurance 

OPRBs because there is no record evidence of any 

reservation-of-rights clause relating to life insurance. 

SNOC (Hatch and Vogtle plants): The collectivebargaining agreement for SNOC’s Hatch and Vogtle plants 

refers to SNOC’s “insured benefits.”12 Regardless whether 

this reference incorporated Hatch’s and Vogtle’s health-care 

plans, the two plants were not authorized to unilaterally 

modify the health-care OPRBs because their health-care plans 

presented in the record do not include a reservation-of-rights 

clause.13 Similarly, they were not authorized to modify the 

life-insurance OPRBs because the record before us did not 

include life-insurance plans for either plant. 

 

12 The agreement says that Hatch’s and Vogtle’s employees would 

be covered by “Southern Nuclear Operating Company’s insured 

benefits.” 

13 Hatch’s and Vogtle’s health-care plans point only to “page 151 of 

Your Guide to Benefits for more detailed information about . . . how 

the company may change or terminate the Plan.” The record does 

not include “page 151 of Your Guide to Benefits.” 
15 

In summary, APC, GPC, and the Farley plant were 

allowed to unilaterally modify their health-care OPRBs, but 

Gulf and the Hatch and Vogtle plants were not. None of the 

Companies was allowed to unilaterally modify the lifeinsurance OPRBs. 

IV. 

 The Companies’ final argument is that APC and the 

Farley plant acted lawfully in making their unilateral changes 

because System Council U-19, which sought to negotiate with 

those plants, had no authority to bargain on behalf of the 

plants’ employees.14 Substantial record evidence contradicts 

this argument. System Council U-19 is a consortium of the 

nine local unions that represent the employees at APC and the 

Farley plant. Its bylaws, signed by each of the nine local 

unions, give the Council “the authority on behalf of its Local 

Unions to deal with the authorized representatives of the 

Alabama Power Company as the authorized agent of such 

Local Unions in all matters pertaining to collective 

bargaining.”15 Indeed, the purpose behind the creation of 

System Council U-19 was “to achieve a greater degree of 

unity and coordinated action between the several Local 

Unions in collective bargaining with the Employer.” There is 

no basis for the Companies’ assertion that System Council U19 did not have bargaining authority. 

 

14 Although we have already concluded that APC and Farley were 

free to modify the health-care OPRBs, this argument is still relevant 

with respect to the life-insurance OPRBs. 

15 System Council U-19’s bylaws refer only to APC because U-19 

was founded before Farley split away from APC in 1991. We have 

no reason to believe that the bylaws do not apply to Farley, 

especially since Local 796 — which represents Farley’s employees 

— is a member of the council. 
16 

* * * 

 For the foregoing reasons, we grant the Companies’ 

petition for review and vacate the Board’s order with respect 

to the modifications to the health-care OPRBs for APC, GPC, 

and the Farley plant; we deny the Companies’ petition and 

enforce the Board’s order with respect to the modifications to 

the health-care OPRBs for Gulf and the Hatch and Vogtle 

plants, as well as the life-insurance OPRBs for all the 

Companies. 

So ordered.