LOUISIANA RECORD

NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit has granted a petition for review brought by the Independent Electrical Contractors of Houston (IEC-Houston) against orders by the National Labor Relations Board (NLRB).

IBEW claims IEC-Houston’s member employment-assistance programs, such as the Shared Man Program and the Application Referral Service, discriminated against the hiring of union members and union organizers, which would be in violation of NLRB Section 8 rules.

According to case background information, the Shared Man Program allowed member contractors to borrow workers for up to 60 days from other IEC-Houston contractors who had less work. IBEW claimed the program gave priority to older workers and not new workers, who were likely union-affiliated.

The second program, the Application Referral Service, was created in 1990 to save time and expenses from running employment ads and dealing with staffing agencies. On Sept. 9, 1997, it started charging $50 for each application fee to keep up with the increasing cost of providing the service. IBEW claimed this was discriminatory to union-affiliated employees because the $50 fee was waived for electricians recently laid off by IEC-Houston members.

The lawsuit states that both programs were contested by IBEW through the NLRB primarily using IEC-Houston’s violation of of labor code that makes it illegal for “an employer to discriminate in employment because of an employee’s union” activity. This is allegedly a violation of an NLRB rules forbidding an employer from interfering in an employee’s “right to self-organize."

In one case, the Administrative Law Judge found several IEC-Houston practices excluded union members and was therefore unlawful under NLRA code. In another, the Administrative Law Judge found IEC-Houston in violation of only Section 8 (a)(1).

IEC-Houston claims both suits were brought citing a Section 8(a)(3) violation and thus they restricted their defense to only Section 8(a)(3). The court agreed.

The court opinion states that a Section 8(a)(1) violation derived from a Section 8(a)(3) will “not be reviewed independently” and must be considered alone. Had IBEW filed suit against IEC-Houston for violating Section 8 (a)(1) then the NLRB would have been at liberty to find IEC-Houston in violation. But the suit was brought citing a Section 8(a)(3) infringement, making a final Section 8(a)(1) violation ruling questionable.

The court notes that there is precedent in viewing Section 8(a)(1) and Section 8(a)(3) separately.  It derided the NLRB, stating that it “was not at liberty to ignore the distinction” between Section 8(a)(1) and 8(a)(3).

In a per curiam opinion, Circuit Judges Edith H. Jones, Jacques Wiener and James E. Graves granted the petition for review, and denied the National Labor Relations Board’s cross-petition for enforcement. The court noted that “the Board’s change of liability theories on appeal was error and it was not harmless error.”

Case No. 10-60822.