Itís not every day ICE gets caught in the middle of a battle between workers wanting to unionize and an employer facing an I-9 investigation. This is where the intersection of labor and immigration law meet but the answers have yet to be defined to inform and instruct the public.
Palermo Pizza Incident
In early May 2012, Palermo Pizza, the nationís fifth largest frozen pizza maker, which provides pizzas to large retailers (like Costco), received a petition from its workers to form a union. A month later, Palermo Pizza, who had been undergoing an ICE I-9 audit, received Notice of Suspect Document letters from ICE alerting the company of the presence of at least 89 workers whose work authorization documents needed to be reverified. In response, Palermo Pizza sent out letters to those employees asking them to provide updated work authorization documents, giving them 28 days to comply. Ten days later, at least 75 employees were fired. It was during this critical month that labor unions who got involved claimed that Palermoís conduct constituted Unfair Labor Practices (i.e.: union-busting activities) by prematurely firing those workers.
Dan Brown, an immigration attorney and Partner at Fragomen, Del Rey, Bernsen and Loewy, LLP in Washington, D.C. informed National Public Radio during a recent broadcast that this was the first time heís heard of ICE staying an investigation:
Itís interesting to see the interplay between the collective bargaining unit and the employer in the ICE enforcement. This is not an issue that comes up very often. I think the interesting thing about it is that ICE did stay the enforcement action but the reason is not clear why.
The U.S. Department of Labor and ICE have a memorandum of understanding on issues related to labor disputes. According to Mr. Brown, the terms of the memorandum indicate that ICE enforcement actions, including I-9 inspections, should not be implemented during an ongoing labor dispute. ICE may have considered this issue and decided to stay its investigation, especially in light of complaints from labor groups.
The Effect of an ICE Stay of Enforcement
In this case, itís unclear how beneficial a stay would be. According to Mr. Brown, ďItís unclear what, if any assurances, ICE gave the employer in that letter, especially after the fact it had already sent the employer a Notice of Suspect Documents.Ē The issuance of a Notice of Suspect Documents, short of issuing civil penalties, is almost the last step in an ICE audit.
That notice generally tells employers that it canít consider the people named on that notice work-authorized anymore. So regardless of the fact that ICE might be staying the action, the employer is between a rock and a hard place because it has been given sufficient notice that this number of workers are not work authorized.
Resolving the Labor Dispute
Labor unions view the firing of employees and replacement of fired workers as an intimidation tactic to prevent workers from unionizing. Part of the labor unionís request is for the employer to reinstate the fired workers. However, itís not clear NLRB would have the legal authority to force an employer to comply. According to Bruce Buchanan, Attorney with Siskind Susser, P.C., who practices both immigration and labor law:
If Palermo fired the employees because of their union activities, the employees would normally be entitled to reinstatement with back pay. However, if the employees are undocumented, then they are not owed back pay or reinstatement. The company will still have to post a notice for 60 days stating it will not discharge employees for their union activity. But that would be the only remedy as the NLRB does not have the authority to fine employers.
One of the critical struggles in the labor dispute was allowing employees to vote on whether to unionize. Because the company fired a large number of employees during an upcoming election period, the issue NLRB must also decide is whether or not a fair election could be held by the employees. [The labor issues are much more complex than my summary.] Mr. Buchanan adds:
Concerning the election petition, the General Counsel, through the NLRB Regional Director, could seek a Gissel bargaining order if it is found that a fair election cannot be held and the union had a card majority before the employer committed the ULPs by discharging the employees. If the NLRB agreed with such a remedy, Palermo Pizza would be ordered to negotiate with the union for a collective bargaining agreement.
In other words, the employer might be forced to allow its workers to form a union if its conduct was found by NLRB to have been egregious enough to have violated certain laws.
The Key Takeaways
ICE was performing a routine investigation of an employerís I-9 documents yet the case quickly spiraled into a legal (and public relations) risk for the employer once the terminations took place, precisely because of the ongoing labor issues. For the most part, labor laws deal with issues as they arise in the workplace irrespective of the legal work status of employees.
Mr. Buchanan warns, ďAnytime there is union activity at its workplace, the employer should hire labor law counsel to advise the employer on the dos and doníts.Ē Indeed, he couldnít be more right.
In the absence of an ongoing labor dispute, a reasonably prudent immigration attorney may have advised an employer to terminate a worker who failed to provide work authorization documents (after a reasonable amount of time to cure had been allowed). However, in this scenario, a labor attorney, working in conjunction with an immigration attorney, would have advised differently pending the resolution of the labor dispute. They would have advised on all possible courses of conduct and informed the employer of the risks associated w/ the unions and the NLRB.
Itís evident that I-9 compliance is increasingly intersecting with other legal practices, including labor law. It is therefore very critical that employers encountering labor issues proactively seek advice from experienced attorneys who possess experience in labor or immigration, or both.