United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided January 6, 2012

No. 10-1410

SOUTHERN POWER COMPANY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 11-1003

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations 

Board

Michael D. Kaufman, Seth T. Ford, and M. Jefferson 

Starling, III were on the briefs for petitioner.

John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, Robert J. 

Englehart, Supervisory Attorney, and Michael D. Berkheimer, 

Attorney, were on the brief for respondent. Daniel A. Blitz, 

Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, 

and EDWARDS, Senior Circuit Judge.
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PER CURIAM: Petitioner Southern Power owns the four 

electricity generating plants involved in this case. Until 2008, 

Southern Power staffed the four facilities by contracting with 

Alabama Power at one of the plants and Georgia Power at the 

three others. Both had exclusive bargaining representatives: 

the International Brotherhood of Electrical Workers (IBEW)

Local 84 represented operation technicians at the Georgia

Power–operated plants; IBEW System Council U-19 on 

behalf of sub-local, Local 801-1, represented the operation 

technicians at the Alabama Power–operated plant. On January 

25, 2008, Southern Power terminated its service agreement 

with Georgia Power and Alabama Power, taking over the four 

plants’ operations. Local 84 and Local 801-1 requested 

recognition, contending that Southern Power qualified as a 

successor employer to Georgia Power and Alabama Power. 

When Southern Power refused to recognize and bargain with 

the unions, each filed charges with the National Labor 

Relations Board (NLRB).

After a hearing, the administrative law judge found that 

Southern Power violated sections 8(a)(1) and (5) of the 

National Labor Relations Act (NLRA), ordering it to 

recognize and bargain with Local 84 and Local 801-1. The 

ALJ also found that the three-plant bargaining unit 

represented by Local 84 was inappropriate and therefore 

ordered Southern Power to bargain with Local 84 in three 

single-plant units. On March 20, 2009, acting with only two 

sitting members, the Board issued an order affirming the 

ALJ’s findings “as modified,” agreeing that Southern Power 

was a successor, but finding, contrary to the ALJ, that the 

Georgia Power three-plant bargaining unit was proper given 

the unit’s group bargaining history. S. Power Co., 353 

N.L.R.B. No. 116, 2009 WL 837873, at *2 (Mar. 20, 2009).

Southern Power petitioned for review, and we remanded the 

case to the NLRB in light of New Process Steel, L.P. v. 
3

NLRB, 130 S. Ct. 2635 (2010), which held that an NLRB 

panel must have at least three members to exercise the 

Board’s authority. On November 30, 2010, a three-member 

panel of the Board, after “consider[ing] the [ALJ’s] decision 

and the record,” decided to “affirm the [ALJ’s] rulings, 

findings, and conclusions and to adopt the recommended 

Order to the extent and for the reasons stated” in the March 20 

Order, which it incorporated by reference. S. Power Co., 356 

N.L.R.B. No. 43, 2010 WL 4929683, at *1 (Nov. 30, 2010).

Southern Power now asks us to vacate the Board’s 

November 30 Order. We lack jurisdiction to consider two of 

Southern Power’s arguments, another is time-barred, and two 

others fail on the merits. Accordingly, we deny Southern

Power’s petition for review and grant the Board’s crossapplication for enforcement.

Southern Power first argues that the speed with which the 

Board reached its decision and the purportedly confusing 

language of its order demonstrate that it “arbitrarily rushed to 

judgment to affirm its improper two-member decision.” Pet’r 

Br. 25. Under NLRA Section 10(e), however, we lack 

jurisdiction to consider this argument because Southern 

Power failed to raise it before the Board by filing a motion for 

reconsideration. See 29 U.S.C. § 160(e), (f) (“[n]o objection 

that has not been urged before the Board . . . shall be 

considered by the court” absent “extraordinary 

circumstances”); Int’l Ladies’ Garment Workers’ Union v. 

Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975) (holding that, 

pursuant to section 160(e), court “may not” consider 

respondent’s objection “that it was denied procedural due 

process” because respondent failed to raise the objection 

before the Board by “fil[ing] a petition for reconsideration”). 

For the same reason, we lack jurisdiction to consider Southern 

Power’s argument that the Order will increase the risk that 
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Southern Power will violate a settlement agreement between 

its parent company and the Federal Energy Regulatory 

Commission.

Next, Southern Power argues that the Board erred in

rejecting its argument that Georgia Power and Alabama 

Power’s original recognition of the unions was unlawful. 

Because nearly ten years have passed since the unions were 

recognized, NLRA Section 10(b)—requiring any challenges 

to the initial majority status of a union to be made within six 

months of its recognition—bars this claim. See 29 U.S.C. 

§ 160(b) (“no complaint shall issue based upon any unfair 

labor practice occurring more than six months prior to the 

filing of the charge with the Board”); Raymond F. Kravis Ctr. 

for the Performing Arts, Inc. v. NLRB, 550 F.3d 1183, 189–90 

(D.C. Cir. 2008) (rejecting defense based on the impropriety 

of union’s original majority status because “[t]he six-month 

time period for challenging Local 623’s alleged lack of 

majority support in 1992 and 1998 passed long before 

[employer] first raised this challenge”).

Southern Power next challenges the Board’s 

successorship finding, arguing that no substantial continuity 

of enterprise existed between it and either Georgia Power or 

Alabama Power. Under the NLRA, a successor employer 

must recognize and bargain with its predecessor’s union. Fall 

River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41

(1987). An employer is a successor where “the majority of its 

employees were employed by its predecessor” and there is 

“substantial continuity” between the enterprises. Id. at 41, 43.

In deciding whether substantial continuity exists, the Board 

examines

whether the business of both employers is essentially 

the same; whether the employees of the new 
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company 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.

Id. at 43. The Board assesses all of these factors “from the 

perspective of the employees involved.” Cmty. Hosps. of 

Cent. Cal. v. NLRB, 335 F.3d 1079, 1083 (D.C. Cir. 2003). 

The substantial continuity inquiry is fact-based, and we must 

uphold the Board’s factual findings if supported by substantial 

evidence. Id. at 1082–83. That standard is amply satisfied 

here. Southern Power has stipulated to most of the relevant 

factors identified by the Supreme Court for evaluating 

substantial continuity: that former Alabama Power and 

Georgia Power employees at each of the four plants 

constituted a majority—indeed, all—of its work force when it 

assumed operation, and that these employees continued, 

without hiatus, doing the same job under the same managers 

with only minor changes to the terms and conditions of their 

employment.

None of Southern Power’s objections undercut the 

Board’s factual findings. First, Southern Power contends that 

it “did not purchase or acquire stock, assets or equipment of 

Alabama Power or Georgia Power.” Pet’r Br. 38. This is, of 

course, true: Southern Power acquired no assets because it 

already owned them. Its relationship to Georgia Power and 

Alabama Power is thus even closer than that of a new 

company that purchases its predecessor’s assets. Second, 

Southern Power contends that it “is fundamentally different 

from Alabama Power and Georgia Power in both size and 

operation.” Id. at 40. Yet differences in company size have 

little impact on continuity within a particular plant and thus 

on whether the employees “view their job situations as 
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essentially unaltered.” Fall River, 482 U.S. at 43. As the 

Board found, and as the record amply demonstrates, the 

working conditions in the plants and the circumstances from 

“the employee’s perspective,” id., remained virtually identical 

after Southern Power’s takeover. Third, Southern Power 

contends that the record lacks adequate evidence that the 

employees expected continued representation because “the 

employees knew that Southern Power was not unionized.” 

Pet’r Br. 44. But this is of no moment: “The fact that the 

employees took ‘non-union’ jobs does not establish that they 

no longer wanted union representation.” Siemens Bldg. 

Techs., Inc., 345 N.L.R.B. 1108, 1109 (2005). Substantial 

continuity itself, rather than the successor’s union status or the 

impossibility of procuring a different union job, creates 

legitimate expectations of continued representation. See Fall 

River, 482 U.S. at 39–40 (“If the employees find themselves 

in a new enterprise that substantially resembles the old, but 

without their chosen bargaining representative, they may well 

feel that their choice of a union is subject to the vagaries of an 

enterprise’s transformation. This feeling is not conducive to 

industrial peace.”).

Finally, Southern Power argues that to the extent we find 

in the Board’s favor, we should deem a single-plant 

bargaining unit, rather than the three-plant unit the Board 

approved, “the most appropriate unit” for the plants 

previously staffed by Georgia Power. Pet’r Br. 44. We, 

however, owe great deference to the Board’s selection of 

bargaining units, and the Board “need only select an

appropriate unit, not the most appropriate unit.” Dean 

Transp., Inc. v. NLRB, 551 F.3d 1055, 1063 (D.C. Cir. 2009) 

(internal quotation marks omitted). Here, the same collectivebargaining agreement covered employees at all three plants 

from the time their positions were created. The Board 

appropriately attached significant weight to this group 
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bargaining history, and Southern Power presented no 

“compelling circumstances” to overcome the resulting 

presumption of appropriateness. See Cmty. Hosps., 335 F.3d 

at 1085 (internal quotation marks omitted).

For the foregoing reasons, we deny the petition for 

review and grant the Board’s cross-application for 

enforcement.

So ordered.