Advice to employers and immigration practitioners re union considerations in implementation SSA No-Match Safe Harbor Rule

1. LABOR CONSIDERATIONS IN REPRESENTING EMPLOYERS REGARDING
IMMIGRATION, IMPLEMENTATION OF A NO-MATCH POLICY, INVESTIGATING
NO-MATCH LETTERS, AND TERMINATING EMPLOYEES
by Mary E. Pivec
When evaluating the implementation and application of a new immigration compliance or
SSA no-match policy, you need to consider the limits of your expertise as an immigration
specialist. A key consideration is whether the affected employees are covered by a
collective bargaining agreement. Even if they are not, they are protected under Section 7
of the National Labor Relations Act.
A. If there is a collective bargaining agreement in place --
1. Consult the language of the following clauses and related precedent
grievance settlements and arbitration decisions to determine the
degree to which the Employer is precluded from implementing a
new policy or practice during the term of the contract:
a. Management Rights
b. Immigration
c. Discipline and Discharge
If you are not sure, STOP. Consult Labor Counsel before taking
further action. If you recommend that the Employer take action and
are you are wrong, you could be sued for malpractice and the
Employer could be subject to back pay liability and reinstatement of
any employees terminated in violation of the contract. There is a
public policy exception to judicial enforcement of a grievance
arbitration decision, but the public policy must be clearly defined,
and the Employer must follow it precisely. In the absence of a
legally implemented final No-Match Safe Harbor Rule, it is safer to
seek a negotiated solution with the Union. See the Aramark case.
2. If the Employer is not precluded from proposing a change in policy
by (1) or (2) during the term of the collective bargaining agreement,
any new policy (or a material change in enforcement of an existing
policy) which impacts the continuation of employment is a
mandatory subject of bargaining. Prior to implementation, the
Employer is obligated to give the Union notice of the proposed
change and an opportunity to bargain. If the Union waives the
opportunity to bargain by failing to respond within a reasonable
period, the Employer may implement the policy unilaterally. If the
Union insists upon bargaining, the Employer must bargain to
impasse prior to implementing the policy. The Union also is
obligated to bargain in good faith. If it adheres to a rid position:
“No” – an impasse is likely, however.
© Keller and Heckman LLP, 2008 1

2. If you are not sure whether the Employer has satisfied its bargaining
obligation to the Union, STOP. Consult Labor Counsel before
taking further action. If you are wrong, you could be sued for
malpractice, and the Employer could be charged with unfair labor
practices under the NLRA with attendant costs and attorneys’ fees,
as well as potential back pay liability and reinstatement obligations.
4. If there is a collective bargaining relationship, the Union must be
given notice of investigations which may result in disciplinary
action. Investigation of the discrepancies noted in a No-Match
Letter which impact bargaining unit members triggers the obligation
to give notice to the Union. Affected employees have a right to
request that a Union representative be present in any interview with
Management related to the investigation, including any meeting
called to notify the employee of disciplinary action or termination
(known as Weingarten Rights). The Union representative does not
have the right to obstruct the investigation or direct the employee
not to answer questions reasonably related to the investigation.
If you are not sure whether the Employer has satisfied its
Weingarten obligations, STOP. Consult Labor Counsel before
taking further action. If you are wrong, you could be sued for
malpractice, and the Employer could be charged with unfair labor
practices under the NLRA with attendant costs and attorneys’ fees,
as well as potential back pay liability and reinstatement obligations.
B. If there is no Union representative and/or collective bargaining
agreement –
1. Generally speaking, the Employer may implement or change
any policy or practice not inconsistent with a binding express or
implied agreement between the Employer and its employees. Do
request copies of all current immigration, conduct, progressive
discipline, and discharge policies to ensure that the proposed change
is allowable and consistent.
If you are not sure whether the Employer can implement the change,
STOP. Consult Labor Counsel before taking further action. If you
are wrong, you could be sued for breach of an express or implied
contract under governing state law, and could incur liability for back
pay and reinstatement of employees whose contract rights have been
violated.
2. Under current law, non-Union represented employees have
no Weingarten Rights – meaning they have no right to request that a
© Keller and Heckman LLP, 2008 2

3. representative be present during an investigatory or disciplinary
interview.
3. Nevertheless, even unrepresented employees are protected
under Section 7 of the NLRA, which entitles them to engage in
concerted protected activity for their mutual aid and protection, and
prohibits Employers from interfering in the exercise of such rights.
Prohibiting employees from discussing their employee inclusion in a
No-Match Letter with co-workers or community organizations has
been held to violate Section 7 (Ashley Furniture and Voces de la
Frontera). Caveat: A community organization is not a labor
organization under the NLRA and has no right to represent or
engage in collective bargaining on behalf of employees. They can,
however, stir up a lot of trouble for the employer (boycotts, pickets,
etc. – presumably protected First Amendment activity).
If you are not sure whether the Employer may be violating the
employees Section 7 rights, STOP. Consult Labor Counsel before
taking further action. If you are wrong, you could be sued for
malpractice, and the Employer could be charged with unfair labor
practices under the NLRA with attendant costs and attorneys’ fees,
as well as potential back pay liability and reinstatement obligations
– EVEN THOUGH THE EMPLOYER DOES NOT HAVE A
COLLECTIVE BARGAINING AGREEMENT WITH ANY
UNION. Unions frequently are behind unfair labor practice
changes based on the Section 7 rights of unrepresented employees –
they use the proceedings as an organizing tool to demonstrate the
benefits of Union representation.
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