In anticipation of planned layoffs at a Chicago factory that produces such confections as Oreos and Chips Ahoy, the union for workers at the factory has taken the somewhat unusual (albeit not unprecedented) step of filing a complaint of discrimination with the EEOC. In its complaint to the EEOC, the union alleges that the planned layoffs are improperly motivated by age and racial bias.

The owner of the factory, Mondelez International, has said that the layoffs are necessary to save $46 million per year in order to provide for technology upgrades and to prevent locating up to 600 positions to a factory in Mexico. In its complaint, however, the union countered that none of the other Mondelez factories that required capital expenditures sought to save money for doing so by laying-off workers. Additionally, the union argued that the demographics of the Chicago factory are different than those of the other Mondalez factories in that about 86% of the employees in the union are over the age of 40 and about 68% are people of color. Despite those assertions and arguments, the union did not, however, provide the demographics of non-union employees at the factory or the demographics of employees at the other factories that allegedly did not require lay-offs.

The filing with the EEOC provides a helpful reminder to both unionized and non-unionized employers regarding the overlapping jurisdiction of federal agencies. The fact that an employer has a unionized workforce does not mean that the NLRB is the only federal agency their employees and the union can go to for redress of employment issues. Likewise, employers with non-unionized workforces are still subject to the NLRA and may be required to respond to charges before the NLRB.