NLRB: Employer That Refuses To Abide By Settlement Agreement Cannot Rely On Hoffman As A Defense

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

NLRB: EMPLOYER THAT REFUSES TO ABIDE BY SETTLEMENT AGREEMENT CANNOT RELY ON HOFFMAN AS A DEFENSE
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

The National Labor Relations Board (NLRB) has rejected an employer's attempt to raise, as a defense to charges that the employer engaged in unfair labor practices, the immigration status of the workers it treated unfairly. The case concerns the employer's failure to comply with a settlement agreement between it and the NLRB to which the employer agreed after it was charged with unlawful conduct committed during a union organizing campaign in 2001.

The employer, Tuv Taam, Inc., had been charged with numerous violations of the National Labor Relations Act (NLRA), including charges that it interrogated employees, conducted unlawful surveillance, unlawfully reduced union supporters' work hours, discharged employees, and refused to reinstate workers who struck in protest of the unfair labor practices. The settlement agreement required the employer to remedy the unfair labor practices by, among other things, providing back pay to the employees named in the settlement. The agreement also provided that, in the event that Tuy Taam failed to abide by the agreement, the NLRB general counsel would move for summary judgment on all matters raised in the complaint and Tuy Taam waived all defenses to the allegations against it.

The day after the NLRB regional director approved the settlement, the Supreme Court issued its decision in Hoffman Plastic Compounds v. NLRB, 122 S.Ct. 1275 (2002), holding that undocumented workers are not entitled to back pay as a remedy under the NLRA. (For a summary of the Hoffman decision, see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," IMMIGRANTS' RIGHTS UPDATE, Apr. 12, 2002, p. 10). Tuy Taam subsequently refused to abide by the terms of the settlement agreement and requested that the NLRB hold a "Hoffman hearing" to determine the immigration status of the workers covered by the agreement before deciding the merits of the unfair labor practice charges. The NLRB refused and left all matters regarding the workers' immigration status for the compliance stage.

The NLRB unequivocally determined that it "is not foreclosed by Hoffman from awarding a back pay remedy on the basis of [the employer's] bare assertion that the discriminatees are undocumented workers." In this case, Tuy Taam based its allegations that the workers were undocumented on a "no-match letter" it received from the Social Security Administration (SSA) months after it had entered into the settlement agreement. The SSA sends no-match letters to some employers whose employee earnings reports contain incorrect names or Social Security numbers that do not match those in the agency's database. The NLRB held that such evidence is not "legally cognizable evidence" of the discriminatees' immigration status.

Importantly, the NLRB held that in this case, the employees' immigration status "does not bear on whether the [employer] engaged in the unlawful conduct, . . . nor does it bear on the remedy to be ordered at this state of the proceedings for the unlawful conduct found." Given that this case involved all of the most common unfair labor practices, advocates should be able to rely on it to prevent inquiries into complainants' immigration status in most cases before the NLRB. Although it refused to hold that inquiries into immigration status are never relevant, the NLRB implicitly limited those inquiries to cases involving refusal-to-hire allegations.

Tuv Taam, 340 NLRB No. 86 (Sept. 30, 2003).