Ruprecht Company

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 179 (N.L.R.B. 2018)

366 NLRB No.179
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Ruprecht Company and UNITE HERE Local 1.
Cases 13–CA–155048, 13–CA–155049, 13–CA–
156198, and 13–CA–158317
August 27, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On May 13, 2016, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party each filed an answering
brief, cross-exceptions, and a supporting brief. The Re-
spondent filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
I.
The Respondent is a meat processing company with a
facility in Mundelein, Illinois. At all relevant times, the
Union represented certain of the Respondent’s produc-
tion line employees at that facility for purposes of collec-
tive bargaining. The present case concerns the Respond-
ent’s alleged violations of Section 8(a)(5) and (1) of the
National Labor Relations Act. Specifically, the judge
found, and we agree, that the Respondent violated the
Act by unilaterally transferring bargaining unit work to
temporary employment agency employees, unilaterally

1 In adopting the judge’s finding that the Respondent’s unilateral
transfer of bargaining unit work to seven temporary employees was a
“material, substantial, and significant” change, we rely on St. George
Warehouse, Inc., 341 NLRB 904 (2004), rather than North Star Steel
Co., 347 NLRB 1364 (2006). In adopting the judge’s finding that
enrollment in E-Verify is a mandatory subject of bargaining, we do not
rely on Aramark Educational Services, Inc., 355 NLRB 60 (2010), a
decision issued by a two-member Board. See New Process Steel, L.P.
v. NLRB, 560 U.S. 674 (2010). Because we adopt the judge’s finding
that E-Verify affects the terms and conditions of employment, we need
not pass on the Union’s contention that the judge should have taken
notice of a government report about the effects of the E-Verify system
on immigrant employees.
2 We shall modify the judge’s remedy and recommended Order in
accordance with our decision in AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016), and to conform to the judge’s findings and the
Board’s standard remedial language. We shall also substitute a new
notice to conform to the Order as modified.
enrolling in E-Verify,3 dealing directly with bargaining-
unit employees over severance pay and a general release
of claims against the Respondent, and refusing to provide
the Union with unredacted copies of letters from the U.S.
Immigration and Custom Enforcement Agency, Home-
land Security Investigations (HSI) identifying individual
bargaining-unit employees with suspect employment
documents.
Our colleague dissents from those findings in two re-
spects. First, although he agrees that the Respondent
violated the Act by unilaterally enrolling in E-Verify, he
disagrees that the appropriate remedy for that violation is
to require the Respondent, at the Union’s request, to re-
scind its participation in E-Verify. Second, he disagrees
that the Respondent unlawfully refused to provide the
Union with unredacted copies of HSI letters concerning
bargaining unit employees. We address each of these
points below.
II.
Having found that the Respondent violated the Act by
unilaterally enrolling in E-Verify, the judge ordered the
Respondent to rescind its participation in that program at
the Union’s request. This recommended Order is fully
consistent with Section 10(c) of the Act,4 as well as Su-
preme Court precedent.5
Our dissenting colleague nevertheless maintains that a
rescission remedy is unwarranted in this case because the
Union subsequently executed a collective-bargaining
agreement that included enrollment in E-Verify for new
hires.6 But the simple fact that the Union later agreed to
E-Verify for new hires does not mean the Respondent’s
prior unilateral action caused no harm to the Union in
negotiating this issue or to the collective-bargaining pro-
cess overall. To the contrary, the Board has consistently
recognized that an employer’s unilateral action can seri-
ously undermine a union’s position with respect to the
relevant issue, and that restoration of the status quo is
necessary to ensure meaningful bargaining.7 More spe-

3 E-Verify is a web-based system run by the Department of Home-
land Security that allows enrolled employers to confirm the eligibility
of their employees to work in the United States. See www.e-
verify.gov.
4 Under Sec.10(c), the Board, upon finding that any person has en-
gaged or is engaging in an unfair labor practice, “shall issue” an order
requiring that person to cease and desist from the unfair labor practice
and to take affirmative action to effectuate the purposes of the Act.
5 See generally Fibreboard Paper Products Corp. v. NLRB, 379
U.S. 203, 215–216 (1964) (emphasizing the Board’s broad discretion-
ary authority to remedy violations of the Act).
6 The Respondent made its E-Verify proposal two months after it
had already enrolled in E-Verify.
7 See Porta-King Bldg. Systems, 310 NLRB 539, 539–540 (1993),
enfd. 14 F.3d 1258 (8th Cir. 1994); Lehigh Portland Cement Co., 286
NLRB 1366, 1366 fn. 5 (1987) (employer “seriously undermined the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cifically, the Board has recognized that, in the give-and-
take of bargaining, a party presumably will make conces-
sions in certain terms and conditions to achieve its objec-
tives with respect to others, and that unilateral action can
undermine that dynamic by disrupting the parties’ natural
incentives.8
The present case illustrates the point. The Respond-
ent’s unilateral action compromised the Union’s ability,
and the Respondent’s incentive, to engage in that give-
and-take process with respect to E-Verify by changing
the starting point for bargaining. Once the Respondent
enrolled in the program, it had the greater leverage. The
Union was placed in the position of offering concessions
to persuade the Respondent to restore the status quo and
quit the program. The Union thus had far less bargaining
leverage than it would have enjoyed had the Respondent
sought the Union’s agreement to enroll initially. Accord-
ingly, we find it appropriate to exercise our remedial
discretion to afford the Union an opportunity to revisit
this issue, if it so desires.
Contrary to our dissenting colleague, we do not find
that Essex Valley Visiting Nurses Assn., 343 NLRB 817
(2004), enfd. 14 F.3d 1258 (8th Cir. 1994), warrants a
different result. In Essex Valley, the employer notified
the union, approximately one month beforehand, that it
was planning to transfer several registered nurses from
in-house administrative positions to field nurse positions.
Id. at 817. The parties bargained over the transfers, but
the employer implemented them unilaterally, as planned.
Id. at 817–818. Two months later, the union again re-
quested to bargain over the transfers but the employer
refused. Id. at 818–819. The Board found that the em-
ployer violated Section 8(a)(5) and (1) by unilaterally
transferring the affected nurses. The Board acknowl-
edged that the standard remedy for that violation would
be to order the employer to rescind the unlawful trans-
fers. Id. at 821. But the Board did not order rescission in
“the particular circumstances” of the case—explaining
that the parties had bargained over the matter and subse-
quently entered into a collective-bargaining agreement
containing a management rights clause, privileging the
employer to make the nurse transfers. Id.
The present case stands in marked contrast to Essex
Valley. First, the Respondent here did not notify the Un-
ion about E-Verify or provide an opportunity to bargain
until months after it had already enrolled in the program.

[u]nion’s bargaining position by unlawfully implementing its proposals
and maintaining the terms and conditions in those proposals during
subsequent bargaining”).
8 See Endo Laboratories, Inc., 239 NLRB 1074, 1075
(1978) (recognizing “the kind of ‘horsetrading’ or ‘give-and-take’ that
characterizes good-faith bargaining”).
Second, in Essex Valley the unlawful transfers were the
only unfair labor practice found by the Board. By con-
trast, the Respondent here committed a series of Section
8(a)(5) violations that sidelined the Union and under-
mined its ability to represent employees during a critical
time for all concerned—the inquiries from HSI and the
prospect (ultimately realized) that many of the Respond-
ent’s workers would be discharged or forced to resign.
In these circumstances, we are convinced that the poli-
cies of the Act are better served by requiring the Re-
spondent to rescind its enrollment in E-Verify and bar-
gain over that subject, if the Union so desires.
III.
Nor are we persuaded by our dissenting colleague’s
argument that the Respondent was entitled to withhold
from the Union unredacted versions of correspondence
from HSI regarding the employment status of unit em-
ployees. Instead, we find the Respondent’s refusal to
provide the Union with the unredacted correspondence
was not justified under Board law, and further, directly
prevented the Union from assisting unit employees.
The Respondent received a subpoena from HSI in Jan-
uary 2015,9 requesting documents from its employment
eligibility verification process. In May, the Respondent,
without any notice to the Union, unilaterally started us-
ing temporary employees to do bargaining unit work and
enrolled in E-Verify. After hearing concerns from unit
employees about a potential HSI audit, the Union in June
contacted the Respondent to discuss the issue. The Re-
spondent later confirmed the HSI audit to the Union dur-
ing a telephone call in early June.
On July 10, the Respondent received a letter from HSI
that Immigration and Customs Enforcement (ICE) had
apprehended eight of its employees whom it deemed
unauthorized to work in the United States. When the
Respondent notified the Union of the letter on July 13,
the Union requested an unredacted copy, but the Re-
spondent replied that it would discuss the Union’s re-
quest at a previously scheduled July 16 bargaining ses-
sion. In that same conversation, the Respondent in-
formed the Union that discharges were imminent.10
During the July 16 bargaining session, the Respondent
provided a copy of the July 10 letter with employees’
names redacted. The Union again requested unredacted
copies of the HSI correspondence, but the Respondent
refused at least until it conferred with counsel. On July

9 All subsequent dates are in 2015 unless otherwise noted.
10 On July 14, the Respondent received a second letter from HSI no-
tifying it that another of its employees had been apprehended and
deemed unauthorized to work in the United States. It is unclear when,
or if, the Respondent notified the Union about the July 14 letter.
RUPRECHT CO. 3
17, the Respondent received another letter from HSI in-
forming it that 194 of its employees did not appear to be
authorized to work in the United States.
On July 21, the Union reiterated its demand for unre-
dacted copies of letters from HSI. The Respondent in-
formed the Union that the names of unit employees af-
fected by the audit were confidential, and that it
“need[ed] some assurances that this information w[ould]
be treated with such confidentiality.” On July 22, before
the Union had even replied to the Respondent’s confi-
dentiality request, the Respondent began discharging
bargaining unit employees.
On July 23, the Union asked the Respondent what kind
of confidentiality assurances it sought; on July 27, the
Respondent requested that the Union sign a confidentiali-
ty agreement. However, it was not until August 5, two
weeks after it began discharging employees, that the Re-
spondent drafted a confidentiality agreement for the Un-
ion to review. The Union did not sign the confidentiality
agreement and, to date, the Respondent has not provided
the Union with unredacted copies of the letters.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
furnish the Union with unredacted copies of the request-
ed correspondence from HSI. An employer has a statuto-
ry obligation to provide requested information that is
potentially relevant to a union’s fulfillment of its respon-
sibilities as the employees’ exclusive bargaining repre-
sentative. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). Here, we agree with the judge that the names of
those employees affected by the HSI investigation were
relevant to the Union’s representative duties. See, e.g.,
Mission Foods, 345 NLRB 788, 790 & 790 fn. 5 (2005)
(finding presumptively relevant and ordering production
of a list of employees disciplined, discharged, or laid off
due to immigration status, among other things, to the
extent not covered by the union’s other requests).11
Thus, the Respondent’s refusal to provide the infor-
mation requested by the Union was unlawful, unless the
Respondent has established a valid defense.
The Respondent, now joined by our dissenting col-
league, argues that confidentiality concerns privileged its
redaction of employee names in the HSI letters, and that
it met its statutory obligations by presenting the Union
with a proposed confidentiality agreement. We disagree.

11 In asserting that the information requested here was not presump-
tively relevant, the Respondent erroneously relies on an administrative
law judge’s finding in Washington Beef, Inc., 328 NLRB 612 (1999),
that similar correspondence between an employer and the Immigration
and Naturalization Service was not relevant to the union’s representa-
tional duties. The judge’s finding was not challenged before the Board
on exceptions and thus has no precedential value. See id. at 612 fn. 1.
A party asserting confidentiality as a reason for with-
holding information bears the initial burden of establish-
ing that the requested information is confidential. Meno-
rah Medical Center, 362 NLRB No. 193 (2015), enfd. in
relevant part 867 F.3d 1288, 1300 (D.C. Cir. 2017). In-
formation will not be found “confidential” merely be-
cause a party has labeled it as such. Bud Antle Inc., 359
NLRB 1257, 1265 (2013) (claim of confidentiality re-
jected when no evidence offered in support), reaffirmed
and incorporated by reference, 361 NLRB 873 (2014).
Rather, the Board has limited “confidential information”
to a few general categories. See generally Detroit News-
paper Agency, 317 NLRB 1071, 1073 (1995) (e.g., high-
ly personal information, such as individual medical rec-
ords; proprietary information, such as trade secrets; in-
formation that traditionally is privileged, such as attorney
work product).
In the present case, we assume without deciding that
the Respondent had a legitimate interest in keeping the
names of individual employees with suspect employment
documents confidential.12 In the particular circumstances

12 Member Pearce would find that the information is not confidential
and notes that the logic behind the Respondent’s claim of confidentiali-
ty simply does not withstand scrutiny, as it ignores the reality of the
workplace. The identities of employees impacted by the HSI audit
were not, as a practical matter, confidential because they would have
been readily apparent to other employees through mere observation,
based on who no longer worked for the Respondent. Member Pearce
would further find that even if the Respondent had raised a valid confi-
dentiality interest in the employee names, it would still have been re-
quired to produce the information as the Union’s need for the infor-
mation outweighed the Respondent’s confidentiality interest. See Ka-
leida Health, Inc., 356 NLRB 1373 (2011), citing Detroit Edison Co. v.
NLRB, 440 U.S. 301, 318–319 (1979) (where an employer raises a
valid confidentiality interest in response to an information request, the
Board balances that interest against the union’s need for the infor-
mation, in order to determine whether disclosure is required.) Here, the
Union had a compelling need to quickly identify employees listed in
the HSI letters. The letters presented an imminent threat to the em-
ployment security of many of the bargaining unit employees. Indeed,
within days of receiving the July 17 notification from HSI that 194 of
its employees did not appear to be authorized to work in the United
States, the Respondent notified employees that would it would begin
discharging affected employees, and actually discharged them. As a
result of these discharges, two-thirds of the bargaining-unit (62 em-
ployees) lost their jobs. In those circumstances, the Union plainly had a
compelling need to quickly learn which employees were under investi-
gation by HSI so that it could assist them (where possible) in providing
documentation of their authorization to work in the Unites States.
The Respondent’s interest in not disclosing the identity of at-risk
employees was considerably weaker. As noted, the Respondent was
not asserting an interest in maintaining the confidentiality of its own
information, but was preemptively asserting an interest belonging to its
employees, against their bargaining representative. This significantly
weakens the Respondent’s position, as “[t]he Board is … entitled to
suspicion when faced with an employer’s benevolence as its workers’
champion against their certified union.” Auciello Iron Works, Inc. v.
NLRB, 517 U.S. 781, 790 (1996). Therefore, contrary to the dissent,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
here, however, we find that the Respondent waived its
confidentiality defense because it did not timely assert a
confidentiality interest or propose a reasonable accom-
modation and engage in accommodation bargaining.
Postal Service, 364 NLRB No. 27, slip op. at 2 (2016).
The sequence and timing of events demonstrate that
the Respondent’s assertion of confidentiality and pro-
posal for a confidentiality agreement were too little, too
late. The Respondent received HSI letters on July 10,
14, and 17, but did not assert that the information was
confidential until July 21, despite the Union’s multiple
intervening requests for unredacted copies of the letters.
The very next day—only one day after first demanding
assurances of confidentiality from the Union—the Re-
spondent began informing affected employees that they
were being discharged. The Respondent thereby frus-
trated any opportunity the Union may have had to assist
affected employees before the Respondent discharged
them. Further, the Respondent did not deliver its actual
confidentiality proposal to the Union until two weeks
after it had discharged those employees. This delay only
further hampered any ability the Union may have had to
timely assist adversely affected employees. That se-
quence of events highlights both the time-sensitive na-
ture of the Union’s request and the untimeliness of the
Respondent’s actions. See, e.g., The Finley Hospital,
362 NLRB No. 102, slip op. at 8 (2015) (where union
requested information bearing on employee’s discharge,
observing that “Time was of the essence,” and finding
that employer’s proposed accommodation was untimely
where it was offered months after union’s initial request
and when union already was in midst of trying to assist
employee achieve a resolution of her discharge), sum-
marily enforced in relevant part 827 F.3d 720 (8th Cir.
2016).

which suggests that the Respondent’s actions “appear to be taken on
behalf of employees’ privacy rather than self-interest or obstruction of
the Union’s bargaining duties,” Auciello indicates that any doubts
should be resolved in favor of the union. This is particularly true
where, as here, the Respondent has engaged in a course of unlawful
conduct, including unilateral changes and direct dealing that effectively
sidelined its employees’ union. In addition, the Respondent has not
established, nor even suggested, that it had any basis for believing that
the Union would misuse the names of unit employees identified in the
HSI letters. See Metropolitan Edison Co., 330 NLRB 107, 108 (1999)
(finding that mere “possibility” that union would retaliate against in-
formants was insufficient to justify nondisclosure). For these reasons,
Member Pearce finds that the balance of interests strongly favored full
disclosure to the Union of the relevant HSI letters so that the Union
could identify and assist affected unit employees. See, e.g., AT&T
Services, Inc., 366 NLRB No. 48 (2018) (finding that union’s need for
employees’ individual results on an employer-administered technical
test outweighed employer’s asserted confidentiality interest and, thus,
ordering production).
Finally, we observe that the Board has long held that
the party asserting confidentiality has the burden of pro-
posing the accommodation. Postal Service, 364 NLRB
No. 27, slip op. at 2 (2016), citing Borgess Medical Cen-
ter, 342 NLRB 1105, 1106 (2014). Therefore, our dis-
senting colleague improperly shifts this burden by sug-
gesting that the Union, if it really wanted the unredacted
letters, “could have offered a confidentiality agreement
to the Respondent any time after July 21, 2015.” As the
party asserting the confidentiality interest, the Respond-
ent had the responsibility to timely propose an accom-
modation, which it failed to do.
AMENDED REMEDY
In addition to the remedies recommended by the judge,
we shall order the Respondent to take the following af-
firmative action designed to effectuate the policies of the
Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally transferring
bargaining unit work to temporary employment agency
employees on May 15, 2015, without prior notice to the
Union or affording it an opportunity to bargain, we shall
order the Respondent to make unit employees whole for
any loss of earnings and other benefits suffered as a re-
sult of the unlawful unilateral transfer. Backpay shall be
computed as in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest
as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In addition, we shall
order the Respondent to compensate unit employees for
any adverse tax consequences of receiving a lump-sum
backpay award and to file, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report with the Regional Director for Re-
gion 13 allocating the backpay awards to the appropriate
calendar years for each employee. AdvoServ of New Jer-
sey, Inc., 363 NLRB No. 143 (2016).
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by bypassing the Union and
dealing directly with employees about the terms of the
discharge and the severance pay to be paid to terminated
employees, we shall order that, at the request of the Un-
ion, the Respondent negotiate over the terms of sever-
ance from employment.
Finally, in ordering the Respondent to provide the Un-
ion with unredacted copies of the letters the Respondent
received from HSI, we observe that the Respondent does
not contend in its exceptions or reply briefs that the Un-
ion has no present need for those unredacted letters.
RUPRECHT CO. 5
ORDER
The National Labor Relations Board orders that the
Respondent, The Ruprecht Company, Mundelein, Illi-
nois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Failing and refusing to bargain with the Union,
UNITE HERE Local 1, over its use of temporary em-
ployment agency employees without first notifying the
Union and giving it an opportunity to bargain.
(b) Unilaterally changing the terms and conditions of
its employees by enrolling in the E-Verify program with-
out first notifying the Union and giving it an opportunity
to bargain.
(c) Bypassing the Union and dealing directly with its
employees over the terms of severance from employ-
ment.
(d) Failing and refusing to furnish the Union with re-
quested information that is relevant to it as the collective-
bargaining representative of certain of Respondent’s em-
ployees.
(e) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All full-time and regular part-time Foreman, Head Pro-
cessors, LineMen 1, LineMen 2, and Housemen but
excluding office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act.
(b) Make whole unit employees for any lost wages
they may have suffered as a result of the Respondent’s
use of temporary employment agency employees, with
interest, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Compensate employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 13, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
employee.
(e) Upon request of the Union, rescind its participation
in the E-Verify program and bargain in good faith with
the Union regarding its participation in the program.
(f) Upon request of the Union, bargain in good faith
with the Union regarding severance pay to be paid to
terminated employees and any corresponding release of
claims or confidentiality requirements.
(g) In a timely manner, furnish the Union with copies
of the letters it received from United States Immigration
and Customs Enforcement, Homeland Security Investi-
gations (HSI), containing the names of unit employees
whom HSI identified as having suspect employment
documents or not being authorized to work in the United
States, requested on July 13, 16, and 21, 2015.
(h) Within 14 days after service by the Region, post at
its facility in Mundelein, Illinois, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 13, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
MEMBER EMANUEL, concurring in part and dissenting in
part.
I agree with my colleagues that the Respondent violat-
ed Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (NLRA or Act) by transferring bargaining-unit
work to temporary employees without giving the Union
notice and an opportunity to request bargaining1 and by
dealing directly with employees regarding severance pay.
I also agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
enrolling in E-Verify. However, for the reasons stated
below, I disagree with the remedies my colleagues order
for that violation. Finally, I disagree with my colleagues
that the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing, absent a confidentiality agreement,
to provide the Union with unredacted copies of letters
that the Respondent received from U.S. Immigration and
Customs Enforcement, Homeland Security Investigations
(HSI) listing the names of employees who “appear, at the
present time, not to be authorized to work in the United
States.”
1. E-Verify. My colleagues require the Respondent to
“rescind its participation in the E-Verify program and
bargain in good faith with the Union regarding its partic-
ipation in the program.” However, after the Respondent
unilaterally enrolled in E-Verify, it bargained with the
Union regarding E-Verify during negotiations for a new
collective-bargaining agreement. On October 22, 2015,
the Union agreed to the Respondent’s proposal giving the
Respondent the right to use E-Verify for new hires, and
the collective-bargaining agreement that the Union rati-
fied on February 24, 2016, gives the Respondent this
right. Although rescission and bargaining are typical
remedies when an employer has changed an employment
term without giving the union notice and opportunity to
request bargaining, these are not appropriate remedies
when the parties subsequently bargain over and come to
an agreement regarding the subject of the unilateral
change. See Essex Valley Visiting Nurses Assn., 343
NLRB 817, 821, 843–844 (2004) (finding that the stand-

1 I join my colleagues in ordering a make-whole remedy for affected
employees for any loss of earnings and other benefits caused by the
unlawful unilateral transfer of work. I note, however, that a U.S. Im-
migration and Customs Enforcement, Homeland Security Investiga-
tions audit raised questions about whether many of the Respondent’s
employees were authorized to work in the United States. I further note
that the Board lacks authority to award backpay to “undocumented
aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
(2002); Mezonos Maven Bakery, 357 NLRB 376 (2011), enfd. in rele-
vant part and remanded sub nom. Palma v. NLRB, 723 F.3d 176 (2d
Cir. 2013), on remand 362 NLRB No. 41 (2015). Employees’ immi-
gration status is properly addressed in the compliance stage of these
proceedings. See Tuv Taam Corp., 340 NLRB 756, 760–761 (2003).
ard remedies of rescission and bargaining were inappro-
priate where, after the employer unilaterally transferred
nurses in violation of Section 8(a)(5), the parties entered
into a collective-bargaining agreement containing a man-
agement-rights clause that privileged the employer to
transfer nurses unilaterally), enfd. 14 F.3d 1258 (8th Cir.
1994).2
2. Redacted HSI Letters. I also disagree that the Re-
spondent violated the Act by failing to provide the Union
with unredacted letters from HSI. In mid-July 2015, the
Respondent received letters from HSI listing employees
who had suspect work-authorization documents, inform-
ing the Respondent that HSI will consider the listed em-
ployees to be unauthorized to work in the United States
unless the employees present valid documents, and warn-
ing the Respondent that continuing to employ “unauthor-
ized aliens” would result in fines and other penalties.
The Union requested copies of the letters, and the Re-
spondent provided them with employees’ names redact-
ed. The Union objected to the redaction. In response,
the Respondent agreed to provide the unredacted letters
if the Union signed a confidentiality agreement. At the
Union’s request, the Respondent drafted a confidentiality
agreement and gave it to the Union for its review. The
Union never signed a confidentiality agreement.
Contrary to my colleagues, I believe that the Respond-
ent acted lawfully when it refused to furnish unredacted
copies of the letters unless the Union signed a confiden-
tiality agreement. The HSI letters named employees who
“appear, at the present time, not to be authorized to work
in the United States.” The Respondent’s interest in pro-
tecting the confidentiality of such sensitive information
is apparent, and its actions appear to be taken on behalf
of employees’ privacy rather than self-interest or obstruc-
tion of the Union’s bargaining duties.
Nor did the Respondent waive its confidentiality de-
fense, as my colleagues assert. The Respondent’s asser-
tion of confidentiality came only 8 days after the Union’s
initial request for the names of affected employees in the
first HSI letter the Respondent received. In the mean-
time, the Respondent informed the Union that it wanted
an opportunity to confer with its counsel, and it received
two more HSI letters naming almost 200 additional em-
ployees. Given the seriousness and scope of the issue
and the extremely condensed timeframe in this case, the
Respondent’s assertion of confidentiality was timely.

2 In Total Security Management Illinois 1, LLC, 364 NLRB No. 106
(2016), a Board majority overruled Essex Valley, but only to the extent
Essex Valley can be read to suggest “that a discipline or discharge
[must] be ‘solely’ the result of a unilateral change to violate Sec.
8(a)(5).” Id., slip op. at 15 fn. 40. Thus, Essex Valley remains good
law for the proposition for which I cite it.
RUPRECHT CO. 7
Furthermore, the Respondent timely proposed a reasona-
ble accommodation by requesting that the Union sign a
confidentiality agreement. The agreement would have
resulted in the Union obtaining the information while
also fully addressing the Respondent’s confidentiality
concerns. Although the Respondent did not deliver its
confidentiality agreement until 2 weeks after discharging
the affected employees, I disagree with my colleagues’
finding that the Respondent’s offer was untimely. In my
view, a 2-week delay is not so great that it would have
prevented the Union from assisting employees who were
eligible for official work authorization documents. Fur-
ther, once the Respondent supplied the draft confidential-
ity agreement, the Union never signed it, and the stipu-
lated record does not indicate that the Union ever en-
gaged in further bargaining regarding the proposed
agreement. Finally, although not required by Board law,
if the Union wanted the unredacted letters sooner, it
could have offered a confidentiality agreement to the
Respondent any time after July 21, 2015, when the Re-
spondent first asked for assurances of confidentiality.3
Accordingly, I would reverse the judge’s finding that the
Respondent violated Section 8(a)(5) and (1) of the Act
by declining to furnish the Union the unredacted letters
absent an executed confidentiality agreement.
Accordingly, as set forth above, I respectfully concur
in part and dissent in part.
Dated, Washington, D.C. August 27, 2018
______________________________________
William J. Emanuel, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

3 To the extent the majority suggest that the Respondent’s insistence
on a confidentiality agreement directly prevented the Union from as-
sisting unit employees, I disagree. As the Respondent had legitimate
concerns about confidentiality, the Union could have acquired unre-
dacted copies of the HSI letters simply by signing the agreement.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to bargain with the Union,
UNITE HERE Local 1, over our use of temporary em-
ployment agency employees without first notifying the
Union and giving it an opportunity to bargain.
WE WILL NOT unilaterally change the terms and condi-
tions of our employees without first notifying the Union
and giving it an opportunity to bargain.
WE WILL NOT bypass the Union or deal directly with
our employees over the terms of severance from em-
ployment.
WE WILL NOT fail or refuse to furnish the Union with
requested information that is relevant to it as your collec-
tive-bargaining representative.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All full-time and regular part-time Foreman, Head Pro-
cessors, LineMen 1, LineMen 2, and Housemen but
excluding office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act.
WE WILL make you whole for any lost wages you may
have suffered as a result of our use of temporary em-
ployment agency employees, with interest.
WE WILL compensate you, with interest, for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 13, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years for each of you.
WE WILL, upon the request of the Union, withdraw
from participating in E-Verify and WE WILL bargain in
good faith with the Union about participating in this pro-
gram.
WE WILL, upon the request of the Union, bargain in
good faith with the Union over severance pay to be paid
to terminated employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL, in a timely manner, furnish the Union with
copies of the letters we received from United States Im-
migration and Customs Enforcement, Homeland Security
Investigations (HSI), containing the names of unit em-
ployees whom HSI identified as having suspect employ-
ment documents or not being authorized to work in the
United States, requested on July 13, 16, and 21, 2015.
THE RUPRECHT COMPANY
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/13-CA-155048 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Daniel Murphy, Esq. and Timothy Koch, Esq., for the General
Counsel.
Ronald Mason, Esq. (Mason Law Firm Co., L.P.A.), counsel for
the Respondent.
Kristin Martin, Esq. (Davis, Cowell & Bowe, LLP), counsel for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. The parties
herein waived a hearing and submitted this case directly to me
by way of a joint motion and stipulation of facts and exhibits
dated March 7 and 9, 2016. The order consolidating cases and
the first amended consolidated complaint, which issued on
September 30, 2015 and February 11, 2016, were based upon
unfair labor practice charges filed by UNITE HERE Local 1,
herein called the Union, on June 26, 29, July 17, and August
18, 2015. The first amended complaint alleges that The
Ruprecht Company, herein called the Respondent
(1) Unilaterally transferred bargaining unit work to temporary
employment agency employees on May 15, 2015, without
prior notice to the Union and without affording the Union an
opportunity to bargain with Respondent with respect to this
conduct and the effects of this conduct;
(2) Unilaterally enrolled and implemented the E-Verify em-
ployment eligibility verification program on May 13, 2015,
without prior notice to the Union and without affording the
Union an opportunity to bargain with Respondent with re-
spect to this conduct and the effects of this conduct
(3) Bypassed the Union and dealt directly with its employees
in the Unit on July 16 and 20, 2015, by discussing with them
Respondent's intention to provide (a) specific amounts of sev-
erance pay to those employees who it would discharging in
the near future, in exchange for each of them signing a separa-
tion agreement and general release, and (b) rehire rights for
those same employees.
(4) Has failed to furnish the Union since July 16, 2015, with
unredacted versions of the documents the Union requested on
July 14, 2015, when it requested that Respondent furnish the
Union with U.S. Immigration and Customs Enforcement
(ICE) correspondence that includes the names of employees
with suspect employment documents or who are specifically
not authorized to work in the United States.
The Joint Motion and Stipulation of Facts and Exhibits pro-
vides as follows:
(1) The Charge in 13-CA-155048 was filed by the Union on
June 26, 2015, and a copy was served by regular mail on Re-
spondent on June 29, 2015. Pt. Ex. 1(a) and (b)
(2) The Charge in 13-CA-155049 was filed by the Union on
June 26, 2015, and a copy was served by regular mail on Re-
spondent on June 29, 2015. [Jt. Ex. 2(a) and (b)]
(3) The Charge in 13-CA-156198 was filed by the Union on
July 17, 2015, and a copy was served by regular mail on Re-
spondent on July 17, 2015. [Jt. Ex. 3(a) and (b)]
(4) The Charge in 13-CA-158317 was filed by the Union on
August 18, 2015, and a copy was served by regular mail on
the Respondent on August 20, 2015. Pt. Ex. 4(a) and (b)]
(5) An Order Consolidating Cases, Consolidated Complaint,
and Notice of Hearing issued September 30, 2015, and were
served by certified mail on Respondent on September 30,
2015. Pt. Ex. 5(a) and (b)] (6) Respondent's Answer to the
September 30, 2015, Consolidated Complaint was received
on October 14, 2015. [Jt. Ex. 6]
(7) The First Amended Consolidated Complaint issued Feb-
ruary 11, 2016, and was served by certified mail on Respond-
ent on February 11, 2016. Pt. Ex. 7(a) and (b)]
(8) Respondent's Answer to the February 11, 2016, First
Amended Consolidated Complaint was received on February
25, 2016. [Jt. Ex. 8]
(9) The Ruprecht Company ("Ruprecht," "Company," or "Re-
spondent"), established in 1860, is a privately-held meat pro-
cessor and food manufacturer serving both domestic and in-
ternational customers in the foodservice and retail sectors.
Ruprecht provides center of the plate protein items to the
country's finest food service and retail establishments.
(10) Ruprecht has expanded its focus to fully cooked meal so-
lutions, side dishes, and other value-add raw items. As a result
RUPRECHT CO. 9
of said expansion, current customers include well-known in-
dependent restaurants, local and national chains, national and
international distributors, and retail supermarkets.
(11) At all material times, Respondent, a corporation with an
office and place of business 1301 Allanson Rd, Mundelein, IL
60060, herein called Respondent's facility [sic].
(12) During the past calendar year, a representative period,
Respondent sold and shipped from its Mundelein, Illinois, fa-
cility goods valued in excess of $50,000 directly to points out-
side the State of Illinois.
(13) At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
(14) At all material times, UNITE HERE Local 1 ("Union")
has been a labor organization within the meaning of Section
2(5) of the Act.
(15) At all material times, the following individuals held the
positions set forth opposite their names and have been super-
visors of Ruprecht within the meaning of Section 2(11) of the
Act and agents of the Employer within the meaning of Sec-
tion 2(13) of the Act:
Mr. Walter Sommers ("Sommers") holds the position of Pres-
ident.
Mr. Todd Perry ("Perry") holds the position of Chief Finan-
cial Officer.
Ms. Staci Foss ("Foss") holds the position of Human Re-
sources Manager
Mr. Jaimie Jiminez ("Jiminez") holds the position of Supervi-
sor.
(16) The following employees of Respondent, herein called
the Unit, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time Foremen, Head Processors,
LineMen 1, LineMen 2, and Housemen, but excluding office
clerical employees, guards, professional employees and su-
pervisors as defined in the Act.
(17) At all material times, based on Section 9(a) of the Act,
the Union has been the designated exclusive collective-
bargaining representative of the Unit described above, and has
been recognized as such by the Employer. The Union and
Ruprecht have been parties to various successor collective-
bargaining agreements, the most recent of which was effec-
tive September 1, 2010, through August 31, 2013. [Jt. Ex. 9]
(18) Ruprecht and the Union have a longstanding collective-
bargaining relationship. The parties have agreed to all materi-
al terms and conditions of a successor agreement, and the Un-
ion ratified the agreement on February 24, 2016.
(19) On January 27, 2015, Ruprecht received correspondence
from United States Immigration and Customs Enforcement
Agency, Homeland Security Investigations ("HSI"), inform-
ing Ruprecht of an impending inspection of Ruprecht's Forms
I-9. HSI also informed Ruprecht that any documents copied
as part of the employment eligibility verification process
would also require inspection. Attached to the correspondence
was a subpoena requiring Ruprecht to make said documents
available for inspection no later than February 3, 2015. Fail-
ure to comply with the subpoena could have resulted in an or-
der of contempt by a federal District Court as provided by 8
U.S.C. § 1225(d)(4)(B). [Jt. Ex. 10]
(20) Accordingly, Ruprecht complied with the aforemen-
tioned subpoena and HSI inspected Form I-9's for 262 em-
ployees.
(21) During the HSI audit, and in order to avoid a catastrophic
loss to its workforce should another audit occur in the future,
Ruprecht enrolled in the E-Verify system on May 13, 2015.
"U.S. law requires companies to employ only individuals who
may legally work in the United States — either U.S. citizens,
or foreign citizens who have the necessary authorization. This
diverse workforce contributes greatly to the vibrancy and
strength of our economy, but that same strength also attracts
unauthorized employment. E-Verify is an Internet-based sys-
tem that allows businesses to determine the eligibility of their
employees to work in the United States." [The current E-
Verify User Manual is attached as Jt. Ex. 11, and a copy the
current E-Verify Memorandum of Understanding for Em-
ployers is attached as Jt. Ex. 12]
(22) Since May 13, 2015, Ruprecht has utilized E-Verify to
verify the eligibility of over 40 new bargaining-unit employ-
ees to work in the United States.
(23) Ruprecht was neither statutorily mandated nor required
by the federal government to enroll in the E-Verify system.
(24) Ruprecht uses the E-Verify system only for new hires.
Accordingly, all existing Union members who were then
Ruprecht employees at the time of its implementation in May
2015 were/are not affected, and none of those employees
were terminated for failing to be authorized under the E-
Verify system.
(25) During the first week of June 2015, Union Organizing
Director Dan Abraham ("Abraham") called Ruprecht Presi-
dent Sommers stating that unit members had been expressing
concerns to Abraham about a possible immigration audit tak-
ing place at Ruprecht. In that call, Sommers stated that
Ruprecht was also very concerned about an HSI audit that it
was in the midst of, and that Ruprecht had contacted the Na-
tional Immigrant Justice Center ("NIJC") to come to the
Company's facility on June 10, 2015, to make a presentation
to employees. Abraham requested to meet with Sommers that
day and to attend the NIJC's presentation, and Sommers con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
sented.
(26) On June 9, 2015, Ruprecht's attorney contacted Abraham
to request that the June 10, 2015, meeting between Abraham
and Sommers would not be for the purpose of bargaining;
Abraham agreed.
(27) Also on June 9, 2015, Abraham sent an email to Som-
mers, to which he attached language designed to protect im-
migrant employees that the Union had previously used with
other employers going through immigration audits.
(28) On June 10, 2015, Union Organizing Director Dan
Abraham ("Abraham") met with Ruprecht President Som-
mers to discuss the HSI audit. Abraham discussed the lan-
guage it had provided Sommers in the previous day's email
regarding the protection of immigrant workers affected by in-
vestigations such as the HSI audit and the use of E-Verify in
workplaces, and Abraham requested the ability to return to the
Company's facilities in the future to assist affected employees.
(29) Abraham informed Sommers at that June 10, 2015, meet-
ing, that the Union has previously entered into collective-
bargaining agreements with other employers regarding pro-
tections and provisions for immigrant workers, and that other
employers had agreed not to participate in voluntary programs
that verify the immigration status of employees, including E-
Verify. The Charging Party, over the objection of the Re-
spondent, wishes to present documentary evidence it believes
to be relevant to paragraph 29, consisting of collective-
bargaining agreement with the Ritz Carlton Hotel. By
Agreement of the Parties and by no later than the close of
business on March 16, 2016, Counsel for the Charging Party
will submit to Judge Biblowitz an Offer of Proof on the ad-
missibility and relevance of the disputed exhibit.
(30) Local 1 requests the Board to take Judicial Notice of a
Wonkblog written by Timothy R. Lee and published online
by the Washington Post on June 3, 2013, entitled "E-verify is
supposed to stop undocumented employment. It could also
harm legal workers," found at http://wapo.st/1dmgFV1 .
Notwithstanding, this Wonkblog and accompanying web ad-
dress were never raised or discussed during bargaining be-
tween the parties. [copy attached as Jt. Ex. 13]
(31) On May 15, 2015, Ruprecht began using temporary em-
ployees to perform and/or assist with bargaining unit work. In
total Ruprecht used a total of seven (7) temporary employees
to perform union bargaining work.
(32) Ruprecht did not notify or offer to bargain with the Un-
ion over this decision or the effects of this decision prior to its
implementation. Ruprecht began using temporary employees
because of the HSI audit and instructed Local 1 of its reason-
ing during bargaining on June 24, 2015, and subsequent bar-
gaining meetings.
(33) On May 16, 2015, Ruprecht emailed the Union, stating
that it understood the Union wished to bargain over the Com-
pany's use of temporary employees, and proposed June 4
and/or June 5, 2015, to discuss the matter.
(34) On May 19, 2015, the Union responded to the May 16,
2015, email by asking who requested this meeting. Later that
same day, Ruprecht responded, stating that the Company
wanted this meeting, indicating that the meeting could not be
held until June 12 or the week of June 15, 2015, because of an
NLRB trial in an unrelated matter.
(35) On May 20, 2015, the Union responded that they were
not available to meet on any of the dates provided by the
Company.
(36) That same day, Ruprecht notified the Union that it was
available for meetings anytime from June 15 through June 26,
2015.
(37) On May 26, 2015, the Union filed a grievance with
Ruprecht over its use of temporary employees to perform unit
work. [Jt. Ex. 14]
(38) On May 28, 2015, the Union informed Ruprecht that it
was available to meet on June 24 and 26, 2015 to discuss Re-
spondent's use of temporary employees.
(39) On June 2, 2015 Ruprecht informed the Union that it
would accept both dates.
(40) On the same day, the Union sent correspondence to the
Company indicating that it was only offering to meet on one
of the aforementioned dates. The parties agreed to meet on
June 24, 2015.
(41) Ruprecht and the Union met on June 24, 2015, and
Ruprecht made proposals related to the Company's right to
use to temporary workers. The parties did not reach any
agreements but set another bargaining session for July 16,
2015.
(42) On June 29, 2015, Ruprecht provided the Union with a
copy of the January 27, 2015, Notice of Inspection from HSI
and the Department of Homeland Security's Immigration En-
forcement Subpoena duces tecum, also dated January 27,
2015.
(43) About July 10, 2015, Ruprecht received correspondence
from HSI alerting Ruprecht that U.S. Immigration and Cus-
toms Enforcement ("ICE") apprehended eight (8) Ruprecht
employees over July 8 and 9, 2015.
The named employees were deemed by ICE to be unauthor-
ized to work in the United States. The correspondence states
in relevant part:
The above noted employees of Ruprecht Company have been
deemed by ICE to be unauthorized to work in the United
RUPRECHT CO. 11
States.
Unless these employees present valid identification and em-
ployment eligibility documentation acceptable for completing
the Employment Eligibility Verification Form I-9, other than
the documents previously presented, they are considered by
ICE to be unauthorized to work in the United States. Contin-
ued employment of employees not authorized to work in the
United States may result in civil penalties ranging from $375
to $3,200 per unauthorized alien for a first violation. Higher
penalties can be imposed for a second or subsequent violation.
Further, criminal charges may be brought against any person
or entity that engages in a pattern or practice of knowingly
hiring or continuing to employ unauthorized aliens.
(44) About July 13, 2015, Ruprecht notified Union Organiz-
ing Director Abraham that it received correspondence from
ICE that included names of specific employees identified in
its investigation as having suspect documents. Abraham re-
quested a copy of that correspondence, including the list of
specific employees who were deemed to have invalid docu-
ments by ICE. Ruprecht stated that it would discuss the re-
quest at a negotiating meeting scheduled for July 16, 2015.
(45) In that same July 13, 2015, phone conversation, Ruprecht
also stated that terminations were imminent and that it would
be letting employees go in groups: non-unit employees would
be terminated before unit employees. Ruprecht also stated its
intention to provide terminated employees with some sever-
ance pay. The Union responded that it would prepare a pro-
posal for severance packages to present at the negotiating
meeting scheduled for July 16, 2015.
(46) About July 14, 2015, Ruprecht received correspondence
from HSI alerting Ruprecht that ICE apprehended one (1) ad-
ditional Ruprecht employee on July 13, 2015. The named
employee was deemed by ICE to be unauthorized to work in
the United States. The correspondence states in relevant part:
The above noted employee of Ruprecht Company has been
deemed by ICE to be unauthorized to work in the United
States.
Unless the employee presents valid identification and em-
ployment eligibility documentation acceptable for completing
the Employment Eligibility Verification Form I-9, other than
the documents previously presented, the employee is consid-
ered by ICE to be unauthorized to work in the United States.
Continued employment of employees not authorized to work
in the United States may result in civil penalties ranging from
$375 to $3,200 per unauthorized alien for a first violation.
Higher penalties can be imposed for a second or subsequent
violation. Further, criminal charges may be brought against
any person or entity that engages in a pattern or practice of
knowingly hiring or continuing to employ unauthorized al-
iens.
(47) On July 15, 2015, Ruprecht management notified em-
ployee members of the Union's bargaining committee that it
wanted to meet with employees at 9:00 a.m. on the morning
of July 16, 2015. The meeting was not exclusive to employee
members of the Union's bargaining committee, as Ruprecht
invited other employees to attend. One of these employees no-
tified the Union of this meeting called by Ruprecht.
(48) On the morning of July 16, 2015, Union Organizing Di-
rector Abraham and Union Vice-President Lou Weeks arrived
at the Company's facility just before the 9:00 a.m. meeting
was scheduled to take place. Abraham and Weeks sought to
be included in that meeting. Chief Financial Officer Perry
turned Abraham and Weeks away, stating that the meeting
was restricted to management and employees, and that he
would see Abraham and Weeks later that morning at the pre-
viously scheduled bargaining meeting.
(49) At this 9:00 am meeting on July 16, 2015, Ruprecht up-
dated the employees on the ongoing HSI investigation. The
only employees who attended the meeting were employee
members of the Union's bargaining committee. No repre-
sentatives from the Union were present. During the meeting,
Ruprecht presented its viewpoint with respect to the HSI in-
vestigation and the Company's plans related to the pending
termination of employees who were found to be unauthorized
to work in the United States. Ruprecht stated that many of the
employees who were facing termination had been with the
Company for a number of years and Ruprecht valued and ap-
preciated their service. Accordingly, Ruprecht stated that it
was going to offer some amount of payment to any employee
who was found to be unauthorized to work and subsequently
terminated. Ruprecht said that it was contemplating offering
between $250 and $1000, depending upon the affected em-
ployee's length of service, In addition, Ruprecht stated that
any employee receiving a payment would be presented with a
release agreement to sign, the content of which was not speci-
fied at that meeting. [Footnote 3 of the Stipulation of Facts
states: “Ruprecht held a handful of meetings with employee
members of the bargaining unit regarding the HIS investiga-
tion. The precise number of meetings and specific dates of
said meetings are unknown.]
(50) Later the morning of July 16, 2015, (after the 9:00 am
meeting with employees had concluded) Ruprecht and the
Union met for bargaining. At the beginning of the meeting,
Union Organizing Director Abraham asked Ruprecht what
the content of the morning meeting between management and
employees on the Union's bargaining committee was.
Ruprecht did not respond to Abraham directly, instead stating
that it had been strictly an internal meeting, and directed
Abraham to ask the employees who attended if he desired any
further information.
(51) During the bargaining session, Ruprecht provided a pro-
posal related to the Company's right to use temporary workers
("Management Rights") and reiterated that the use of tempo-
rary workers was on an as-needed basis. Ruprecht further
stated that because of the ongoing HSI audit/investigation, it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
was in a precarious situation and needed to take actions to
maintain its operations. [Jt. Ex. 15]
Ruprecht held a handful of meetings with employee members
of the bargaining Unit regarding the HSI investigation. The
precise number of meetings and specific dates of said meet-
ings are unknown.
(52) During this meeting Ruprecht also made a proposal to
the Union regarding Ruprecht's use of E-Verify ("New Home-
land Security Issue") for new hires only, and informed the
Union, for the first time, that it had already enrolled in E-
Verify. [Jt. Ex. 16]
(53) At this meeting, Ruprecht also announced verbally its in-
tention to provide severance pay to employees who would
sign a general release.
(54) The Union, in turn, made written proposals to Ruprecht
during the July 16, 2015, meeting regarding severance pay for
employees affected by HSI audit and regarding Ruprecht's use
of temporary workers. On the topic of severance pay, the Un-
ion proposed that terminated employees be provided one
month's salary for each year of service to Ruprecht. Ruprecht
neither accepted the Union's proposal regarding severance pay
nor offered any counter-proposals to the Union at this meet-
ing.
(55) Lastly, during the July 16, 2015, meeting Ruprecht pro-
vided the Union with copies of the July 10, 2015, correspond-
ence it had received from HSI that Abraham had requested on
about July 13, 2015. Ruprecht redacted the employees' names,
citing the sensitive nature of the ongoing HSI investiga-
tion/audit. The Union requested non-redacted copies of the
HSI correspondence and Ruprecht demurred until it first con-
ferred with counsel. [The documents provided to the Union at
that time are attached as Jt. Ex. 17 and 18]
(56) On July 17, 2015, Ruprecht received further correspond-
ence from HSI. In said letter, HSI noted that as a result of the
February 3 audit, 194 employees did not appear to be author-
ized to work in the United States. The letter states in relevant
part:
This letter is to inform you that, according to the records
checked by HSI, the following employees appear, at the pre-
sent time, not to be authorized to work in the United States.
The documents submitted to you were found to pertain to oth-
er individuals, or there was no record of the documents being
issued, or the documents pertain to the individuals, but the in-
dividuals are not employment authorized, or their employ-
ment authorization has expired. Accordingly, the documenta-
tion previously provided to you for these employees does not
satisfy the Form 1-9 employment eligibility verification re-
quirements of the INA. Unless these employees present valid
identification and employment eligibility
documentation acceptable for completing the Form I-9, other
than the documentation previously submitted to you, they are
considered by HSI to be unauthorized to work in the United
States. Continued employment of employees not authorized to
work in the United States may result in civil penalties ranging
from $375 to $3,200 per unauthorized alien for a first viola-
tion. Higher penalties can be imposed for a second or subse-
quent violation. Further, criminal charges may be brought
against any person or entity that engages in a pattern or prac-
tice of knowingly hiring or continuing to employ unauthor-
ized aliens. This is a very serious matter that requires your
immediate attention.
Section 274A(2) of the INA makes it unlawful for a person or
other entity, after hiring an alien for employment, to continue
to employ the alien knowing that the alien is, or has become,
unauthorized for employment. By regulation, knowingly in-
cludes not only actual knowledge, but also knowledge which
may be fairly inferred through a notice of certain facts and
circumstances that would lead a person, through the exercise
of reasonable care, to know about an individual's unlawful
employment status.
Once HSI notifies an employer that employees have presented
documents that appear to be suspect or invalid as proof of
employment eligibility, it is incumbent on the employer to
take reasonable actions to verify the employment eligibility of
the employees. Verification of employment eligibility must be
conducted in the time reasonably necessary to determine the
employment eligibility status of the employees concerned.
The law does not allow for any period of continued employ-
ment of unlawful employees, nor authorizes any delay in the
verification of the employment status of employees for the
purpose of replacing terminated employees.
HSI presumes that employers who, within 10 business days of
receiving a Notice of Suspect Documents letter, verify the
work authorization of suspect employees or take other appro-
priate actions to resolve the apparent employment of unau-
thorized workers have demonstrated reasonable care under the
INA. In all cases, reasonable care will depend upon the spe-
cific facts present and how the facts affect an employer's abil-
ity to verify the status of suspect employees. An employer
who fails to exercise reasonable care in verifying employees'
work authorization after being issued a Notice of Suspect
Documents letter may be subject to civil penalties under the
INA.
(57) On July 17, 2015, Ruprecht notified the Union by email
that it was rejecting the Union's proposal regarding severance
pay and in turn proposed: $250 for those workers employed
less than one year; $500 for those employed between one and
five years; and $1,000 for those employed over five years. [Jt.
Ex. 19]
(58) In addition, Ruprecht stated in this email that receiving
that money would be contingent upon those employees work-
ing through their last scheduled day and signing a "Confiden-
tial Separation Agreement and General Release." Ruprecht at-
tached two versions of the Separation Agreement to this
RUPRECHT CO. 13
email, differentiated only by whether or not the employee to
be terminated was under 40 years of age. [Jt. Ex. 19]
(59) On July 20, 2015, Ruprecht called a general meeting of
its employees at its facility and informed them that it had re-
ceived the names of those employees identified through the
HSI audit, and that it would begin terminating a first group of
employees within a matter of days. Ruprecht detailed the sev-
erance packages it would be offering employees: $250 for
those workers employed less than one year; $500 for those
employed between one and five years; and $1,000 for those
employed over five years. In addition, Ruprecht stated the
severance money would be contingent upon these employees
working through their last scheduled day and signing a "Con-
fidential Separation Agreement and General Release."
(60) On July 21, 2015, the Union responded to Ruprecht's
severance proposal, inquired as to its applicability to the em-
ployees, and requested to bargain over the amount of the sev-
erance package. The Union reiterated its request for the un-
redacted versions of communication that Ruprecht had re-
ceived from ICE, asking "if and when those would be provid-
ed." [Jt. Ex. 20]
(61) Ruprecht responded on the same day. Ruprecht noted
that its proposal was subject to bargaining but had to be re-
solved by July 23, 2015, because of the impending termina-
tions directly caused by the HSI audit/investigation. Ruprecht
further wrote, "We will agree that in concept that you [the Un-
ion] can obtain a list of the bargaining unit employees of Lo-
cal 1 that are on the list [of those with suspect docu-
ments/those to be terminated]. However, such information is
confidential and we need some assurances this information
will be treated with such confidentiality." [Jt. Ex. 20]
(62) On July 22, 2015, Ruprecht began directly notifying em-
ployees it intended to terminate as a result of the Department
of Homeland Security audit, including providing them letters
dated July 22, 2015, that were signed by its Director of Hu-
man Resources, Staci Foss. [A copy of one such letter to an
employee is attached as Jt. Ex. 21]
(63) On July 23, 2015, Ruprecht sent a letter to the Union de-
claring an impasse with respect to the Company's severance
proposal because the Union failed to provide the Company
with any further proposal for the Ruprecht's consideration. [A
copy of the letter, without attachments is attached as Jt. Ex.
22]
(64) On July 23, 2015, the Union sent correspondence to
Ruprecht inquiring what type of assurance of confidentiality
Ruprecht was seeking in order to provide un-redacted ver-
sions of the July 2015 HSI letters. [Jt. Ex. 23]
(65) On July 27, 2015, Ruprecht sent correspondence to the
Union requesting that the Union provide the Company with a
confidentiality agreement with respect to the release of names
listed in the July 2015 HSI correspondence. [Jt. Ex. 23]
(66) The parties next met on August 5, 2015. Ruprecht re-
peated that it was awaiting a confidentiality agreement from
the Union and would not release the names on the HSI list un-
til the parties agreed to a confidentiality agreement.
(67) Per the Union's request, Ruprecht drafted a confidentiali-
ty agreement during the August 5, 2015, meeting and gave it
to the Union for its review.
(68) To date, Ruprecht has not received a signed confidenti-
ality agreement from the Union and, in turn, has not provided
the Union with an unredacted list of employees identified
through the HSI audit.
(69) The parties next met on September 24, 2015. Ruprecht
made additional proposals with respect to the use of tempo-
rary employees and the use of the E-Verify for new hires.
(70) The parties next met on October 22, 2015. During that
meeting, the Union agreed to Ruprecht's proposal regarding
the use of temporary employees and the use of the E-Verify
process for new hires.
(71) As a direct result of the HSI audit, Ruprecht lost 62 of its
92 employees who were members of the Unit through resig-
nation or termination.
While participating in the joint motion and stipulation of
facts, counsel for the Union filed an offer of proof separate
from the stipulation, and not supported by either counsel for the
General Counsel or counsel for the Respondent. Attached to
this offer of Proof is a declaration of the Union’s organizing
director Abraham, which states, inter alia, that the Union repre-
sents employees at approximately 35 hotels in Chicago and, of
these, about thirty contain provisions regarding the use of E-
Verify. Attached to his declaration is the agreement between
the Union and the Sheraton Chicago Hotel and Towers. Section
15(e) of the contract states: “The Employer agrees not to partic-
ipate in any voluntary programs to verify the immigration status
of its employees, such as E-Verify, and will only participate in
those required by state, federal or other applicable law.” One of
the issues herein is whether the Respondent unilaterally en-
rolled and implemented the E-Verify program without prior
notice to, and bargaining with, the Union with respect to the
conduct and the effect of the conduct. That issue is totally dif-
ferent from whether one employer, or 30 employers in the area,
agreed not to participate in E-Verify as part of its contract with
the Union. As I find it irrelevant to the issues herein, the Un-
ion’s Offer of Proof will therefore not be considered.
ANALYSIS
The initial allegation in the Joint Motion is that on about
May 15 the Respondent unilaterally transferred bargaining unit
work to temporary employment agency employees without
prior notice to the Union and without affording the Union an
opportunity to bargain with the Respondent with respect to this
conduct and its effects. The stipulated facts state that on about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
May 15, the Respondent began using temporary employees to
perform and assist with bargaining unit work and used seven
employees for this purpose, and did so because of an audit by
United States Immigration and Custom Enforcement Agency,
Homeland Security Investigations (HSI), and did not notify the
Union over this decision, or the effects of the decision, prior to
implementation. On May 16, the Respondent sent an email to
the Union stating it understood that the Union wished to bar-
gain about this subject and proposed June 4 and/or June 5 for a
meeting to discuss the issue. The Union responded on May 19
by email asking who requested the meeting and the Respondent
replied that same day saying that it wanted the meeting, but that
it could not be held until June 12 or the week of June 15 due to
a NLRB hearing in an unrelated matter. The Union responded
the following day saying that they were not available to meet
on any of the dates proposed by the Respondent and later that
same day the Respondent notified the Union that it was availa-
ble to meet anytime from June 15 through 26, and the parties
agreed to meet June 24. At this meeting the Respondent made
proposals related to its use of temporary workers, but the par-
ties did not reach any agreement on the subject, although they
scheduled another bargaining session for July 16. On May 26
the Union filed a grievance over the Respondent’s use of tem-
porary employees to perform unit work. On July 15, Respond-
ent notified employee members of the Union’s bargaining
committee that it wanted to meet with employees the following
morning and on the morning of July 16 Abraham and its Weeks
arrived at the Respondent’s facility and asked to attend the
meeting, but they were turned away and told that the meeting
was restricted to management and employees. Later that morn-
ing the Union and Respondent met for bargaining; Abraham
asked what the content of the morning meeting was, but Re-
spondent did not respond directly, stating that it was strictly an
internal meeting and that he could ask the employees who at-
tended if he desired further information. At this meeting with
the Union, the Respondent made a proposal related to its right
to use temporary workers and reiterated that it was on an as-
needed basis. Respondent also stated that due to the ongoing
HSI audit/investigation, it was in a precarious situation and
needed to take actions in order to maintain its operations.
An employer has a duty to bargain with the representative of
its employees prior to making any changes in wages, hours or
other working conditions if the change is a “material, substan-
tial and a significant” one affecting the bargaining unit’s terms
and conditions of employment, and the General Counsel bears
the burden of establishing that the change was material, sub-
stantial and significant. Central Telephone Co. of Texas, 343
NLRB 987, 1000 (2004). Further, the Board has found a viola-
tion where an employer transfers bargaining unit work to su-
pervisors, or other nonbargaining unit employees without first
giving the union an opportunity to bargain about the subject. St.
George Warehouse, Inc., 341 NLRB 904, 924 (2004). In de-
termining whether counsel for the General Counsel has sus-
tained his burden of establishing that the unilateral change was
material, substantial and significant, I note that the number of
temporary employment agency employees used by the Re-
spondent was seven. The Stipulation of Facts states (at Par. 71)
that as a result of the HSI audit, Respondent lost 62 of its 92
employees who were members of the unit through resignation
or termination. Based upon the above, I find that counsel for the
General Counsel has satisfied its burden of establishing that the
use of 7 temporary employees out of a total complement of
about 92 employees was a material, substantial, and significant.
North Star Steel Co., 347 NLRB 1364, 1367 (2006).
However, the Board also recognizes an exception in these
Section 8(a)(1)(5) cases where the employer can establish a
“compelling business justification,” for the action taken. Winn-
Dixie Stores, Inc., 243 NLRB 972 fn. 9 (1979), or where “eco-
nomic exigencies compelled prompt action.” Master Window
Cleaning, Inc., 302 NLRB 373, 374 (1991). The Board recog-
nizes as “compelling economic considerations” only those “ex-
traordinary events” which are “an unforeseen occurrence, hav-
ing a major economic effect [requiring] the company to take
immediate action.” Angelica Healthcare Services, 284 NLRB
844, 852-853 (1987); Hankins Lumber Co., 316 NLRB 837,
838 (1995), and the employer carries a heavy burden of demon-
strating that this particular action had to be implemented
promptly. Triple A Fire Protection, Inc., 315 NLRB 409, 414
(1994); Our Lady of Lourdes Health Center, 306 NLRB 337,
340 fn. 6 (1992). Even where the employer has satisfied these
requirements, it must also demonstrate that the exigency was
caused by external events, was beyond its control or was not
reasonably foreseen. RBE Electronics of S.D., Inc., 320 NLRB
80, 82 (1995). Although the evidence establishes that the Re-
spondent was concerned with, and affected by the loss of nu-
merous employees resulting from the HSI audit and findings, I
find that inadequate to support this economic exigencies de-
fense, and find that this unilateral change by the Respondent
violated Section 8(a)(1)(5) of the Act.
It is also alleged that the Respondent bypassed the Union and
dealt directly with the unit employees on July 16 and 20 by
discussing with them its intention to provide (a) specific
amounts of severance pay to those employees it would be dis-
charging in the near future, in exchange for them signing a
separation agreement and general release, and (b) rehire rights
for those same employees. This also relates to, and resulted
from the HSI audit of the Respondent’s employees. On about
July 10, HSI notified the Respondent that U.S. Immigration and
Customs Enforcement (ICE) apprehended eight of its employ-
ees and found that they were unauthorized to work in the U.S.
On about July 13, Respondent notified Abraham that it had
received correspondence from ICE with the names of the em-
ployees being charged. Abraham asked for a copy of the ICE
correspondence including the named employees who were
deemed to have invalid documents and Respondent replied that
it would discuss the issue with the Union at the July 16 sched-
uled negotiating meeting. In that same July 13 conversation,
Respondent also told Abraham that terminations were imminent
and that it would be letting employees go in groups: nonunit
employees would be terminated before unit employees, and that
it intended to provide terminated employees were severance
pay. The Union responded that it would prepare a proposal for
severance packages to be presented at the scheduled July 16
negotiating meeting. At a meeting on July 16, 2015, which
Abraham and Weeks were not permitted to attend, Respondent
updated the employee members of the Union’s bargaining
RUPRECHT CO. 15
committee about the ongoing HSI investigation. During the
meeting with these employees, Respondent presented its view-
point with respect to the HSI investigation and the Company's
plans related to the pending termination of employees who
were found to be unauthorized to work in the United States and
stated that many of the employees who were facing termination
had been with the Company for a number of years and they
valued and appreciated their service. Accordingly, it was going
to offer some amount of payment to any employee who was
found to be unauthorized to work and subsequently terminated;
it was contemplating offering between $250 and $1000, de-
pending upon the affected employee's length of service, In ad-
dition, the Respondent stated that any employee receiving a
payment would be presented with a release agreement to sign,
the content of which was not specified at that meeting. At the
negotiating meeting with the Union later that morning, Abra-
ham asked what the content was of the meeting that was held
with the employees, but he was told only that it was strictly an
internal meeting. At this meeting the Union proposed that ter-
minated employees be provided one month's salary for each
year of service. Respondent neither accepted this proposal nor
offered any counterproposals to the Union at this meeting.
On July 17, Respondent notified the Union by email that it
was rejecting the Union's severance proposal and in turn pro-
posed: $250 for those workers employed less than one year;
$500 for those employed between one and five years; and
$1000 for those employed over five years. In addition, Re-
spondent stated in this email that receiving that money would
be contingent upon those employees working through their last
scheduled day and signing a "Confidential Separation Agree-
ment and General Release." On July 20, Respondent called a
general meeting of its employees at its facility and informed
them that it had received the names of those employees identi-
fied through the HSI audit, and that it would begin terminating
the first group of employees within a matter of days. They de-
tailed the severance packages it would be offering employees:
$250 for those workers employed less than one year; $500 for
those employed between one and five years; and $1000 for
those employed over five years, and that the severance money
would be contingent upon these employees working through
their last scheduled day and signing a "Confidential Separation
Agreement and General Release." On July 21, the Union re-
sponded to Respondent’s severance proposal, inquired as to its
applicability to the employees, and requested to bargain over
the amount of the severance package. On that same day, Re-
spondent noted that its proposal was subject to bargaining but
had to be resolved by July 23 because of the impending termi-
nations directly caused by the HSI audit/investigation. On July
22, Respondent began directly notifying employees it intended
to terminate as a result of the Department of Homeland Securi-
ty audit, including providing them letters dated July 22, 2015,
that were signed by its director of human resources, Staci Foss.
On July 23, Respondent sent a letter to the Union declaring an
impasse with respect to the Company's severance proposal
because the Union failed to provide it with any further proposal
for the Respondent’s consideration.
In Champion International Corp., 339 NLRB 672, 673
(2003), the Board discussed the difference between a unilateral
change violation and a direct dealing violation: “The former
involves a change in terms and conditions of employment. It
does not depend on whether there was a communication to
employees. The latter involves dealing with employees (by-
passing the Union) about a mandatory subject of bargaining. It
does not depend on whether there has been a change.” Southern
California Gas Co., 316 NLRB 979 (1995) ,enumerated the
criteria for determining whether an employer has engaged in
direct dealing under Section 8(a)(5) of the Act: (1) the employ-
er was communicating directly with union represented employ-
ees; (2) the discussion was for the purpose of establishing or
changing wages, hours and terms and conditions of employ-
ment or undercutting the union’s role in bargaining; and (3)
such communication was made to the exclusion of the union.
The Permanente Medical Group, Inc., 332 NLRB 1143, 1144
(2000). In NLRB v. General Electric Co., 418 F.2d 736, 759 (2d
Cir. 1969), the court stated that direct dealing will be found
where the employer has chosen “to deal with the Union through
the employees, rather than with the employees through the
Union.”
Although the Respondent told the Union on July 13 of the
imminent terminations and that it intended to give the terminat-
ed employees severance pay, they did not tell the Union the
amount of the severance pay that it was considering. Yet, at the
meeting with the employees on July 16 they told the employees
of their intent to give the terminated employees severance pay,
as well as they amount of the severance pay. It wasn’t until the
following day that the Respondent told the Union the amount of
the severance pay it was considering and, at that point, offered
to bargain about the amount. Although the Respondent told the
Union on July 13 of their intention to give the terminated em-
ployees severance pay, and bargained with the Union about the
amount to be paid on and after July 16, I find that by telling the
employees of the amount of severance pay that it was consider-
ing before telling the Union, the Respondent attempted to influ-
ence the Union’s position by bypassing it and dealing directly
with the employees, in violation of Section 8(a)(1)(5) of the
Act. Allied Signal, Inc., 307 NLRB 752 (1992).
It is also alleged that since about July 16 the Respondent has
failed to furnish the Union with unredacted versions of the HSI
correspondence containing the names of employees who were
not authorized to work in the United States, information re-
quested by the Union on July 14. The Stipulation of Facts es-
tablish that on January 27 the Respondent received a subpoena
from HSI requiring Respondent to produce its I-9 forms and the
Respondent complied and HSI inspected its I-9 Forms for 262
employees. During the first week of June, Abraham told Re-
spondent that the employees were concerned about an immigra-
tion audit taking place at its facility and on about July 10 and
14 the Respondent received letters from HSI stating that they
apprehended nine named employees of the Respondent who
were found not to be authorized to work in the United States
and on July 13 the Respondent notified the Union that it had
received these letters and Abraham requested a copy of the
letters including the named employees. Respondent stated that
it would discuss this request at the next bargaining session.
During the July 16 negotiating session, Respondent gave Abra-
ham copies of the letter, but with the employees’ names redact-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ed, citing the sensitive nature of the ongoing HSI audit. One of
the letters dated July 10, states, inter alia, “This letter is to in-
form you that, according to the records checked by HSI, the
following employees appear, at the present time [emphasis
added], not to be authorized to work in the United States.” On
July 22, Respondent wrote to an employee who was among
those who was among those who HSI determined to lack the
proper documentation: “You must provide the necessary docu-
mentation demonstrating that you are eligible to work in the
United States by August 5, 2015.” The Union requested an un-
redacted copy of the July 10 and 14 letters and repeated this
request on July 21. By letter dated July 23, the Union asked
Respondent what type of assurance of confidentiality it was
seeking in order to provide it with the unredacted letters and by
letter dated July 27, Respondent stated that the Union must
provide it with a confidentiality agreement with respect to the
release of the names of the employees listed in the HSI letters.
At a meeting on August 5, Respondent repeated that it would
not release the names of the employees in the letters until the
parties agreed to a confidentiality agreement and, at the Un-
ion’s request, drafted such an agreement and gave it to the Un-
ion, but the Union has not executed the agreement and the Re-
spondent has not furnished the Union with unredacted versions
of the letters.
In APRA Fuel Oil Buyers Group, Inc., 320 NLRB 408
(1995), the Board, confronted with the issue of whether it
should grant its traditional make whole remedy, including rein-
statement and backpay, to undocumented workers, stated: “we
find that IRCA [Immigration Reform and Control Act of 1986]
and the NLRA can and must be read in harmony as comple-
mentary elements of a legislative scheme explicitly intended, in
both cases, to protect the rights of employees in the American
workplace.” In addition (at p. 410), the Board stated:
In exercising our broad authority to remedy violations of the
Act, however, we are fully cognizant of our obligation to con-
sider with care Congressional mandates in other areas of pub-
lic policy. As the Court pointed out in Southern Steamship v.
NLRB, 316 U.S. 31 (1942), the Board may not “apply the pol-
icies of its statute so single-mindedly as to ignore other equal-
ly important Congressional objectives.”
I note that while the July 10 and 14 letters from HSI state
that the named employees “were deemed by ICE to be unau-
thorized to work in the United States,” the July 17 letter begins
by stating that the named employees “…did not appear to be
authorized to work in the United States” and “…at the present
time” were not authorized to work in the Unites States. The
letters also state that the employees can remain employed if
they present valid identification and employment eligibility
documentation acceptable for completing I-9s. In other words,
the ICE determination was a preliminary one that was capable
of being corrected and reversed. Regardless, on July 16, Re-
spondent notified its employees that it intended to give sever-
ance pay to the affected employees, and on July 22 notified the
nine employees that due to the audit, they were being terminat-
ed. The Union requested the unredacted letters, but was never
given them.
In Aramark Facility Services v. SEIU, Local 1877, 530 F.3d
817 (9th Cir. 2008), SSA sent the employer “no-match letters
stating that the Social Security information provided by the
employer for forty eight did not match the SSA Database. Upon
receiving this letter, the employer notified the listed employees
that they had 3 days to correct the situation. Seven to 10 days
later it fired 33 employee who did not comply in the timely
manner. The union filed a grievance over the discharge and at
an arbitration, the arbitrator ruled in favor of the union and
awarded the employees reinstatement and backpay finding that
there was no convincing evidence that the employees were
undocumented. The Court refused to overturn the arbitration
stating, “…mismatches could generate a no-match letter for
many reasons, including typographical errors, name changes,
compound last names prevalent in immigration communities,
and inaccurate or incomplete employer records. By SSA’s own
estimates, approximately 17.8 million of the 430 million entries
in its database contain errors…, As a result an SSN discrepancy
does not automatically [emphasis supplied] mean that an em-
ployee is undocumented or lacks proper work authorization.”
The court further stated:
To the same effect are statements from the Office of Special
Counsel of Immigration- Related Practices, which is an agen-
cy of the Department of Justice authorized to investigate un-
fair immigration-related employment practices. The Office of
Special Counsel states that “[a] no match does not mean that
an individual is undocumented” and that employers “should
not use the mismatch letter by itself as a reason for taking any
adverse employment action against any employee.”
The court, in enforcing the arbitrator’s award, found: “In
sum, the letters Aramark received are not intended by the SSA
to contain ‘positive information’ of immigration status and
could be triggered by numerous reasons other than fraudulent
documents.”
The E-Verify Memorandum of Understanding For Employ-
ers, (“MOU”) at article II, paragraph 13, states inter alia:
The employer agrees not to take any adverse action against an
employee based upon the employee’s perceived employment
eligibility status while SSA or DHS is processing the verifica-
tion request unless the Employer obtains knowledge that the
employee is not work authorized. The Employer understands
that an initial inability of the SSA or DHS automated verifica-
tion system to verify work authorization, a tentative noncon-
firmation, a case of continuance (indicating the need for addi-
tional time for the government to resolve a case), or a finding
of a photo mismatch, does not establish, and should not be in-
terpreted as, evidence that the employee is not work author-
ized. In any of such cases, the employee must be provided a
full and fair opportunity to contest the finding, and if he or she
does so, the employee may not be terminated or suffer any
adverse employment consequences based upon the employ-
ee’s perceived employment eligibility status…until and unless
secondary verification by SSA or DHS has been completed
and a final nonconfirmation has been issued.
RUPRECHT CO. 17
The July 10, 13, and 17 letters from HSI were not a fait ac-
compli and these unredacted letters were relevant to the Union
in their representation status for the affected employees. If the
Union had the names of these employees it might have been
able to assist them with their immigration problem by directing
them how to obtain the required documents to maintain their
employment with the Respondent. By not furnishing the Union
with the letters, with the employees names, the Respondent has
violated Section 8(a) (1)(5) of the Act.
The final issue is whether the Respondent unilaterally en-
rolled and implemented the E-Verify employment eligibility
verification program on May 13, without prior notice to the
Union and without affording the Union an opportunity to bar-
gain with respect to the conduct and the effects of the conduct,
in violation of Section 8(a)(1)(5) of the Act. The Union has
been the collective-bargaining representative of certain em-
ployees of the Respondent and the parties have had a
longstanding collective-bargaining relationship. The most re-
cent contract was ratified by the Union on February 24, 2016.
On January 27 Respondent received a letter from HSI inform-
ing them of an impending inspection of their I-9 Forms, togeth-
er with a subpoena requiring the Respondent to make the doc-
uments available for inspection. During this HSI audit, “and in
order to avoid a catastrophic loss to its workforce should anoth-
er audit occur in the future, Ruprecht enrolled in the E-Verify
system on May 13, 2015,” and since that date it has utilized E-
Verify to verify the eligibility of over 40 new bargaining unit
employees to work in the United States, although it was neither
statutorily mandated nor required by the federal government to
enroll in E-Verify. The Respondent employs E-Verify only for
new employees; existing employees prior to May 15 were not
affected by its implementation.
MOU article II, paragraphs 9 and 10 state, inter alia:
The Employer is strictly prohibited from creating an E-Verify
case before the employee has been hired, meaning that a firm
offer of employment was extended and accepted and Form I-9
was completed. The Employer agrees to create an E-Verify
case for new employees within three Employer business days
after each employee has been hired…
The Employer agrees not to use E-Verify for pre-employment
screening of job applicants, in support of any unlawful em-
ployment practice, or for any other use that this MOU or the
E-Verify User Manual does not authorize.
Briefly stated, when an employer enrolls in the program, it
agrees to forward Form I-9 to DHS within three business days
after the employee is hired. This information is then checked
against SSA, DHS, and DOS records with three possible re-
sults: 1. Employment Authorized. The information submitted
matched SSA and/or DHS records; 2. SSA or DHS Tentative
Nonconfirmation (TNC). The information submitted does not
initially match SSA or DHS records. Additional action is re-
quired; or 3. DHS Verification in Process. The case is referred
to DHS for further verification. Under number 2, TNC, the
employee has ten days after notification of TNC to decide
whether to contest, or not to contest, the decision. If the em-
ployees decides to contest the determination, he/she must visit
an SSA office within 8 business days to attempt to correct the
situation. If the employee does not contest the determination,
the employer may terminate the employment without criminal
or civil liability. The MOU at page 31 states: “You may not
terminate, suspend, delay training, withhold pay, lower pay or
take any other adverse action against an employee based on the
employees decision to contest an SSA TNC or while his or her
case is still pending with SSA.”
As the Respondent enrolled in the E-Verify system without
notice to, or bargaining with, the Union, the initial issue is
whether it is a term and condition of employment requiring
prior bargaining, and I find that it is. In Aramark Educational
Services, Inc., 355 NLRB 60 (2010), the employer, without
prior notice to the union representing some of its employees,
changed its policy regarding verification of social security
numbers for employees with discrepancies in these numbers, as
a result of no-match lists sent by the Social Security Admin-
istration, by disciplining employees who failed to correct the
discrepancies. As this change affected the employees’ terms
and conditions of employment, it was found to be a mandatory
subject of bargaining and that the unilateral change violated
Section 8(a)(1)(5) of the Act. In Washington Beef, Inc., 328
NLRB 612, 620 (1999), one of the issues involved the employ-
er refusing to bargain with the union over the amount of time
given to a bargaining unit employees to establish that they had
valid authentic work documents. The judge, as affirmed by the
Board, stated: “On this point, there can be no question that the
length of time given to aliens in which to establish they possess
genuine work documents constitutes a term and condition of
employment over which Respondent must bargain upon re-
quest.” Counsel for the Respondent, citing Star Tribune, 295
NLRB 543, 546 (1989), defends that since E-Verify is only
applied to new hires, not existing employees, it does not violate
the Act, while counsel for the General Counsel and counsel for
the Charging Parties, in their briefs, stress that E-Verify re-
quires that employees must be hired before being eligible for E-
Verify scrutiny.
In Star Tribune, supra, the judge found that unilateral
preemployment medical screening, including drug and alcohol
screening for prospective employees, violated Section
8(a)(1)(5) of the Act. In reversing the judge, the Board found
that the obligation to bargain extends only to terms and condi-
tions of employment of the employer’s “employees,” and that
applicants are not employees within the meaning of the Act:
We conclude that applicants for employment are not “em-
ployees” within the meaning of the collective-bargaining ob-
ligations of the Act. Applicants for employment do not fall
within the ordinary meaning of an employer’s “employees.”
Applicants perform no services for the employer, are paid no
wages, and are under no restrictions as to other employment
or activities.
The Board reached a similar conclusion in United States
Postal Service, 308 NLRB 1305, 1308 (1992). However, as the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
E-Verify MOU states repeatedly, these are not job applicants,
who are not eligible for this program. The individuals must
have been tendered an offer that they accepted, and the em-
ployer has three business days to submit the I-9. Even though
they are newly hired employees with three days or less of em-
ployment with the employer, they are “employees” within the
meaning of the Act. I therefore find that by unilaterally imple-
menting E-Verify, the Respondent violated Section 8(a)(1)(5)
of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. As stated in the Statement of Issues Presented in the joint
motion and stipulations of facts, I find (1) the Respondent uni-
laterally transferred bargaining unit work to temporary em-
ployment agency employees on May 15, without prior notice to
the Union and without affording the Union an opportunity to
bargain with Respondent with respect to this conduct and the
effects of this conduct, in violation of Section 8(a)(1)(5) of the
Act; (2) the Respondent unilaterally enrolled and implemented
the E-Verify employment eligibility verification program on
May 13 without prior notice to the Union and without affording
the Union an opportunity to bargain with Respondent with re-
spect to this conduct and the effects of this conduct, in violation
of Section 8(a)(1)(5) of the Act; (3) the Respondent bypassed
the Union and dealt directly with its employees about severance
pay to be paid to terminated employees, in violation of Section
8(a)(1)(5) of the Act; and (4) the Respondent failed to furnish
the Union with the unredacted documents containing the names
of employees with suspect employment documents that it re-
quested on about July 14, also in violation of Section 8(a)(1)(5)
of the Act.
REMEDY
As for violation (1), I recommend that the Respondent be or-
dered to negotiate with the Union prior to employing temporary
employment agency employees and restore the status quo ante
by restoring the unit to where it would have been without the
use of these temporary employees, if they are still employed by
the Respondent. Further, I would leave for the compliance stage
the determination of whether any backpay is due because of the
employment of these temporary employees. As to violation (2),
I recommend that, at the request of the Union, the Respondent
be ordered to withdraw from the E-Verify system and to bar-
gain in good faith with the Union about its participation in the
E-Verify system and re-enroll in the system only pursuant to
agreement with the Union or as a result of a valid impasse in its
negotiations with the Union. As for violation (4), within 10
days of this decision, furnish the Union with unredacted copies
of the letters stating the names of the employees with suspect
employment documents that it had requested on about July 14,
2015.
Upon the foregoing joint motion and stipulation of facts and
exhibits, the conclusions of law and the entire record, I hereby
issue the following recommended1
ORDER
The Respondent, The Ruprecht Company, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union over its
use of temporary employment agency employees without prior
notice to the Union.
(b) Unilaterally changing the terms and conditions of its em-
ployees by enrolling in the E-Verify program without prior
notice to the Union and without affording the Union an oppor-
tunity to bargain about the conduct and the effects of the con-
duct.
(c) Dealing directly with its employees and bypassing the
Union on the subject of severance pay to be paid to terminated
employees.
(d) Failing and refusing to furnish the Union with infor-
mation that is relevant to it as the collective-bargaining repre-
sentative of certain of Respondent’s employees.
(e) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 10 days from the date of this Decision, furnish to
the Union copies of all the letters received from HSI containing
the names of employees apprehended by U.S. Immigration and
Custom Enforcement.
(b) Upon request of the Union rescind its participation in the
E-Verify program and bargain in good faith with the Union
regarding its participation in the program.
(c) Within 14 days after service by the Region, post at its fa-
cility in Mundelein, Illinois, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 13, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 13,
2015.

1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RUPRECHT CO. 19
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 13, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to bargain with UNITE HERE
Local 1 (the Union) over our use of temporary employment
agency employees without prior notice to the Union.
WE WILL NOT unilaterally change your terms and conditions
of its employees without prior notice to the Union and without
affording the Union an opportunity to bargain about the con-
duct and the effects of the conduct.
WE WILL NOT bypass the Union and deal directly with you on
the subject of severance pay or any other term or condition of
employment.
WE WILL NOT refuse to furnish the Union with information
that is relevant to it as your collective-bargaining representa-
tive.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, upon the request of the Union, withdraw from par-
ticipating in E-Verify and WE WILL bargain in good faith with
the Union about participating in this program.
WE WILL furnish the Union with the letters we received from
U.S. Immigration and Customs Enforcement containing the
names of employees with suspect employment documents.
WE WILL bargain in good faith with the Union over the terms
and conditions of employment of our employees represented by
the Union.
RUPRECHT COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/13-CA-155048 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.