Employer That Hires Undocumented Aliens Cannot Refuse To Bargain With Their Union

The influential U.S. Court of Appeals for the District of Columbia has ruled that an employer cannot refuse to bargain with a union that represents illegal immigrants that the employer hired. In Agri Processesor Co. Inc., v. National Labor Relations Board, (Jan. 4, 2008), a New York City employer hired a number of undocumented aliens to work at a kosher meat processing plant. A majority of plant workers sought to improve their working conditions by electing the United Food and Commercial Workers Union as their union representative.

Instead of sitting down at the bargaining table with the democratically elected union, the employer chose to violate federal labor law. The employer claimed it had no obligation to bargain with a union that represents illegal aliens, even though the employer hired these employees. The employer also claimed that the National Labor Relations Board had no power to craft a bargaining unit that included both illegal aliens and legal residents. The NLRB and the D.C. Circuit Court easily rejected these arguments. They cited to a U.S. Supreme Court case that held that the National Labor Relations Act, which is the federal labor law that applies to the private sector, defines “employee” to protects legal and illegal residents. “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” the Supreme Court ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984).

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB cannot provide certain financial relief to illegal aliens, such as backpay to immigrants fired in violation of the NLRA. But as the D.C. Circuit pointed out, Hoffman Plastic did not change the basic rule from Sure-Tan: illegal aliens have the right to join unions and be free from anti-union retaliation.

Regardless of one’s position on illegal immigration, the D.C. Circuit’s decision in Agri Processor is a victory for unions and a rebuke of employer’s illegal efforts to undermine employee free choice. Agri Processing shows states that employers cannot rely on its own question hiring practices to justify illegally refusing to negotiate with unions elected by employees.

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Sandulli Grace Attorneys Continue To Lead In Educational Efforts

The staff at Sandulli Grace continues to uphold its longstanding commitment to legal education with its attorneys actively involved in educating clients, other lawyers and the public.

In March, Ken Grace will start his 26th year as an instructor at the School of Industrial Relations at the Labor Guild of Boston, teaching his popular Snapshot of Labor Relations course. This is a bittersweet term at the Guild, as it is the first school term in over 30 years that will not be overseen by Fr. Edward Boyle, who passed away last November. Father Ed was an inspiration to the entire labor community, and he was a good friend and mentor to many of us here at Sandulli Grace. The Labor Guild School provides practical courses to union leaders and rank and file members from all walks of life. While we mourn Fr. Ed’s passing, we look forward to maintaining our strong relationship with and commitment to the Labor Guild, and we welcome its new head, Sister Mary Priniski. More information about the Labor Guild can be found at its website, http://www.laborguild.com.

Bryan Decker is also active in educational activities. On January 29, 2008, Bryan taught a course on Labor Law Basics presented by the Boston Bar Association. The course was aimed at new attorneys, or at lawyers who do not normally practice in this area. Bryan is also a member of the leadership at the Massachusetts Bar Association, and this year he serves as Pro Bono Coordinator for the MBA’s Labor and Employment Section. Along with co-coordinator Rosemary Pye, the Boston Regional Director of the Federal National Labor Relations Board, Bryan has developed a course entitled Your Rights and Responsibilities on the Job, which is an introductory course for individuals entering the job force. Bryan and Rosemary presented the course for the first time at the Urban League of Eastern Massachusetts’s Employment and Professional Skills Training, which is an intensive six-week training program. The presentation was a success and will be repeated at the Urban League in early February. Bryan and Regional Director Pye hope to then expand the program to include other members as teachers, and to offer it to other organizations and educational institutions. Their efforts were noted in the MBA’s January Lawyer’s Journal.

In May, Amy Davidson is again co-chairing the Boston Bar Association’s annual Public Sector Labor Law Conference held at Harvard Law School. This is the largest conference concentrating on Massachusetts Public Sector Labor Law in the state, and is a “must attend” for all attorneys who practice in this area.

Governor Patrick Appoints Sandulli Grace Partner Amy Laura Davidson to Division of Labor Relations Advisory Council

Amy Davidson has been appointed to the Division of Labor Relations Advisory Council. The Division of Labor Relations is the newly-formed consolidated  agency with jurisdiction over unfair labor practice cases, arbitrations and the Joint Labor Management Committee.

The Advisory Council is charged with responsibility for advising the new Division of Labor Relations concerning policies and practices that it might implement to better discharge its labor relations duties. The Council will be interviewing and vetting candidates for vacancies in the positions of Director and Board members (formerly known as Labor Relations Commissioners). The Council will submit the names of successful candidates to the governor for appointment.

The Advisory Council is comprised of thirteen members including five representatives of public sector unions, five representatives of public sector management and three non-affiliated members. The Director of Labor, the Chair of the Commonwealth Employment Relations Board and the Director of the Division of Labor Relations will all serve as non-voting members of the Advisory Council.

Press Release

Good God! MBTA Unlawfully Discriminates Against Religious Applicant

In Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, http://socialaw.org/slip.htm?cid=17757&sid=120, SJC-09893 (Jan. 8, 2008), the Supreme Judicial Court ruled that the transit agency violated state anti-discrimination law when it refused to hire a Seventh-Day Adventist for his inability to work on the Sabbath (Friday sundown until Saturday at sundown).

The Massachusetts anti-discrimination law, known as General Laws Chapter 151B, §4, protects employees and applicants from discrimination by employers on the basis of religion. Once an employee notifies an employer that an employer’s practice requires him or her to violate a religious practice compelled by sincerely held belief, the employer must either a) accommodate the complainant or b) prove that accommodation of the employee’s religious obligations imposes “an undue hardship” on the employer. In analyzing the employer’s defense of undue hardship, the MCAD “must focus on the particular nature and operations of the employer’s business” and “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.”

In this case, the MBTA failed to explore any reasonable accommodation of the applicant’s religious inability to work on the Sabbath, namely allowing the prospective employee to swap Sabbath shifts with other bus drivers. The SJC agreed that the MBTA faces an undue hardship if accommodation of religion forces it to leave a shift uncovered or to pay overtime to a relief driver. But the SJC chided the MBTA for failing to conduct even a cursory investigation into whether shift-swapping is feasible. The anti-discrimination law, the court noted, expressly contemplates observance of the Sabbath as a protected religious activity that may entitle an employee to a reasonable accommodation. Swaps therefore may be the simplest cost-free method of accommodating this religious practice.

The SJC left the door open for an employer in future circumstances to show, following an investigation, that shift-swapping was unlikely to adequately enable the employee to not work on the Sabbath. The MBTA conducted no such investigation here. The SJC, however, declined to that an employer automatically violates Chapter 151B by failing to explore options for accommodating the employee’s asserted religious practice.

Finally, the Court appeared to indicate that a collective bargaining agreement may be a defense to an employer’s claim of undue hardship, if for instance, the CBA denied or restricted the practice of voluntary swaps.

SJC Rules Non-Applicant Is Non-Victim Of Discrimination

In Nguyen v. William Joiner Center For The Study Of War And Social Consequences, SJC-09848 (December 21, 2007) [http://socialaw.org/slip.htm?cid=17718&sid=120], the Massachusetts Supreme Judicial Court dismissed a claim that the University of Massachusetts illegally refused to appoint a person to a fellowship because the plaintiff never actually applied for the fellowship. ?
In this case, the plaintiff, who claimed to be of South Vietnamese origin, claimed that the University’s hiring practices were motivated by discrimination. The plaintiff did not, however, ever apply for the positions during a three-year period. He justified his inaction by pointing to the University’s alleged failure to advertise widely for the positions and by pointing to the futility of applying for the fellowships once he filed a claim of discrimination with the Massachusetts Commission Against Discrimination.

The SJC found that the positions were adequately advertised and, moreover, insufficient advertising does not necessarily mean that the employer’s hiring was motivated by discriminatory beliefs. In addressing the significance of the plaintiff’s failure to apply for the positions, the SJC refused to rule that non-applicants are barred from asserting claims of discrimination. It wrote, “In the context of proving a discrimination claim under G. L. c. 151B, a per se prohibition of relief to a non-applicant on the basis of futility would contravene the remedial purpose of the statute.”

The SJC then elaborated on this concept of “futility,” which is how a discrimination claim by a non-applicant is analyzed. This concept is similar to “constructive discharge,” which permits persons who “voluntarily” quit a job to claim that they were effectively forced out of their position. While normally a person denied a position cannot file a claim of discrimination if they did not apply for said position, the SJC recognized that such an omission is excusable when the employer has a notorious discriminatory hiring practice or policy. However, the plaintiff here failed to provide any evidence that the University would have refused to hire him subsequent to his filing of an MCAD claim. “The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed.”