NLRB Settlement Finds E-Verify is a Mandatory Subject of Bargaining

In a precedent-setting settlement with the National Labor Relations Board (NLRB), Berkeley’s Pacific Steel Casting Company (Pacific Steel) has agreed to reinstate employees and pay employees for any wages and benefits lost who were terminated as a result of Pacific Steel’s unlawful entry into the E-Verify Program.  The agreement, signed March 22, 2012, also requires that Pacific Steel provide written notice to the Department of Homeland Security (DHS) terminating their enrollment in E-Verify based on their failure to bargain with the Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No. 164B, AFL-CIO, CLC (Local 164B).

Local 164B filed this charge as a result of Pacific Steel’s decision to unilaterally and voluntarily implement the use of E-Verify, an internet-based electronic employment eligibility verification system, in its workplace and as a result of Pacific Steel’s refusal to bargain with the Union over this implementation.  On February 23, 2011, Pacific Steel voluntarily signed a Memorandum of Understanding (“MOU”) with the Department of Homeland Security (“DHS”) agreeing to become an E-verify employer.  Pacific Steel did not notify Local 164B of its participation in the E-Verify program.  Local 164B learned of Pacific Steel’s enrollment in the program for the first time in early May 2011.  On May 5, 2011, Local 164B requested in writing that Pacific Steel confirm that it had enrolled in the E-Verify program.  On May 11, 2011, Pacific Steel confirmed its participation in E-Verify and untruthfully claimed that because Pacific Steel was a federal contractor, it was required to become an E-Verify employer.  On June 7, 2011, Pacific Steel admitted to Local 164B that it was not in fact a federal contractor and stated that it would continue to use the program.  On June 15, 2011 Local 164B filed the charge that led to this settlement.

This settlement firmly establishes the principle that any employer who voluntarily enters into the E-Verify Program must bargain with the union. The settlement also upholds the requirements of the E-Verify Program by requiring employers to give employees the required time necessary to contest a tentative non-confirmation and imposes financial penalties for any failure to do so.

Local 164B is represented by Conchita Lozano-Batista and Monica Guizar of Weinberg, Roger & Rosenfeld in this matter.  For more information, please contact Conchita or Monica.

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