An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. The Ruprecht Co., Nos. 13-CA-155048, 13-CA-155049, 13-CA-156198 and 13-CA-158317, JD(NY)-14-16 (May 13, 2016).

The company had lost 62 of its 92 bargaining unit employees due to resignation or termination following a government Form I-9 audit and the company hired seven temporary employees to do bargaining-unit work. The union then filed unfair labor practice charges with the NLRB after the employer hired a temporary agency to fill the seven temps. After a trial, the administrative law judge found the use of the seven temporary employees to be a “material, substantial, and significant” change and ordered the company to bargain with the union.

Following the audit, the employer implemented the E-Verify program, a system to verify work eligibility by comparing information from Form I-9 with Social Security Administration and Department of Homeland Security records. The ALJ also ruled that the use of E-Verify was a change in the terms and conditions of employment and required notice to the union and an opportunity to bargain. He ordered the company to withdraw its enrollment in E-Verify and bargain with the union in good faith. Finally, the ALJ decided that the Company violated the NLRA by unilaterally negotiating severance agreements with terminated employees.

The ALJ additionally ordered the employer to provide the union with copies of the letters it received from HSI (an investigative arm of the Department of Homeland Security) regarding workers with suspect employment documents within 10 days, post copies of the NLRB notice at its Illinois facility, and bargain with the union in good faith.