Employers May Need to Bargain Over Their Compliance with the Law.
Although unionized employers have no choice but to comply with the law, they may have choices about how to accomplish that – and may be required to bargain with the union over those decisions, as the U.S. Court of Appeals for the Fourth Circuit recently reiterated.
In NLRB v. Frontier Communications Corp., the employer discovered it was “massively noncompliant” with its I-9 obligations under the Immigration Reform and Control Act, lacking properly completed forms for over 90% of its 16,400 employees. After the employer directed employees to submit new forms, the union demanded to bargain over the form completion process – including obtaining assurances that a process previously agreed to several years earlier, in the context of another attempt to address the I-9 compliance issues, would remain in effect. The employer refused, stating that it was required to comply with the federal legal mandate. The union filed an unfair labor practice charge, and the Board found that the employer had, in fact, committed unfair labor practices.
Under the National Labor Relations Act, an employer must bargain in good faith over the terms and conditions of employment. They are not, however, required to bargain over “non-discretionary actions taken to comply with legal obligations.” However, this principle is not absolute – as the Fourth Circuit noted, employers also “must bargain over the ‘effects,’ or impacts, that non-negotiable managerial decisions may have on employees and their terms and conditions of employment.” And “effects bargaining requires that bargaining representatives receive ‘pre-implementation notice’ of an employer’s legally mandated action and an opportunity to negotiate over any discretionary aspects of how the action will be carried out.” In this case, there was room to negotiate over details of the form completion process.
This case reminds employers that compliance with the law is not the end of any bargaining obligation. How that compliance is accomplished may need to be negotiated with the union.