FIFTH CIRCUIT COURT PANEL DENIES ENFORCEMENT OF NLRB'S ORDER CONCERNING IEC-TGC'S OPERATION OF ITS APPLICATION SERVICE AND "SHARED MAN" PROGRAM.
By: Frank L. Carrabba

For seventeen (17) years, Independent Electrical Contractors Association - Texas Gulf Coast Chapter (IEC-TGC) has been litigating with the NLRB regarding the legality of its Application Service and "Shared Man" program. On June 17, 2013, a United States Court of Appeals for the Fifth Circuit panel majority refused to enforce an NLRB Decision and Order that had found its manner of operation to be unlawful. The Court panel majority concluded that the NLRB denied IEC-TGC "due process of law and misapplied its own precedents."

In 1996 and 1997, International Brotherhood of Electrical Workers Local Union No. 716 filed numerous unfair labor practice charges against IEC-TGC, alleging that it maintained a referral system that discriminated against the hiring of union-affiliated employees. The NLRB conducted two (2) trials on these allegations in 1998 and 2001. Thereafter, two (2) NLRB Administrative Law Judges (ALJ) found that IEC-TGC's operation of its Application Service and "Shared Man" program were discriminatory as to union applicants.

IEC-TGC appealed both ALJ decisions to the NLRB in Washington, D.C. In 2010, the NLRB rejected the ALJs' findings of discrimination by IEC-TGC. However, the NLRB majority held that IEC-TGC's manner of operation of the two programs "interfered with the right of job applicants who were union members and 'salts' to be hired on an equal basis with other nonunion applicants", and therefore violated the National Labor Relations Act in that regard.

IEC-TGC appealed to the United States Court of Appeals for the Fifth Circuit. A Court panel majority refused to uphold the NLRB's Decision and Order, finding that the NLRB based its decision on a novel theory of liability without giving IEC-TGC an opportunity to defend itself and introduce evidence to the contrary. The Fifth Circuit panel majority also concluded that the NLRB ignored its own precedents, Pollock Electric, Inc. and CenTex Independent Electrical Contractors Association, which had held that the "Shared Man" program did not discriminate against union members.

Had the NLRB Decision and Order been upheld by the Appeals Court, IEC-TGC would have been forced to keep specific records, including sufficient information "to disclose how employment applications are processed, marked, or segregated, and the basis for each referral or failure to refer an application to an employer" and submit quarterly reports to the NLRB concerning "the processing and referral of the applications of… self-identified union applicants," including "the number of times they were referred to member employers, and the names of the member employers to which the applications were referred." The Court panel's decision nullified these record-keeping and reporting requirements.

Bob Wilkinson and IEC-TGC members and staff are to be congratulated for their tenacity and perseverance in their long battle with the NLRB to defend their actions in regard to how they operate their Application Service and "Shared Man" program.

Contact Frank L. Carrabba at 888-621-8363

 

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