January 8, 2008

On January 4, 2008, the D.C. Circuit Court of Appeals decided Agri Processor Co., Inc. v. NLRB, which confirmed that undocumented workers are "employees" covered by the National Labor Relations Act. After the Company refused to bargain with a newly-elected union, the NLRB’s General Counsel issued a complaint charging the Company with a violation of the Act. The employer claimed that its refusal to bargain did not violate the Act because the election was invalid based on the participation of undocumented workers, who the Company argued are not "employees" under the Act. An administrative law judge and the NLRB disagreed with the Company, and ordered the Company to bargain with the Union. The Company then appealed to the D.C. Circuit, which held that the Act’s plain language and U.S. Supreme Court precedent establish that undocumented workers are "employees" protected by the Act.

The Company alternatively argued that the bargaining unit was improper because it contained documented and undocumented workers. The Court disagreed. The "community of interests" test, which the NLRB uses to define bargaining units, focuses on the interests of employees as employees, ignoring the employees’ general interests. Because the workers share similar wages, benefits, skills, duties and supervision, the Court deemed the bargaining unit proper.

Your FBT labor and employment counsel is an excellent resource for information on this decision and other labor relations matters.