• An End to the Long Wait for Immigration Papers
  
  
• Immigration Law News
  
  
• Temp Employees in CBA
  
  
• NLRB RETURNS TO ITS FORMER POSITION OF LIMITING WEINGARTEN RIGHTS TO UNIONIZED WORKPLACES
  
  

An End to the Long Wait for Immigration Papers?:
Uscis Announces a Backlog Reduction Initiative

This summer, United States Citizenship and Immigration Services ("USCIS") announced a bold initiative designed to eliminate the backlog of immigration applications and to institute a six-month processing time for all applications by the end of 2006. Although President Bush asked the former INS to reduce the backlog early in 2001, the events of September 11th sidetracked those plans for quite some time. Since then, the INS has been disbanded and responsibility for processing immigration applications has been transferred to the USCIS, under the guardianship of the Department of Homeland Security. Now that USCIS has gotten its feet on the ground, it has renewed the former INS' commitment to backlog reduction. At the end of 2003, USCIS estimated there were approximately 3.7 million cases that exceeded the six-month processing cycle. USCIS hopes to adjudicate these cases, and stay current with applications coming in at the rate of six million per year, within the next year and a half.

USCIS intends to accomplish this lofty-and worthy-goal via a variety of techniques and approaches, including improved technology, better resource allocation, and increased accountability for employees at every level. By the end of 2006, USCIS plans to have the 12 most-used application forms, accounting for 90% of its annual applications, available online for completion and filing. The new USCIS website (http://uscis.gov) permits applicants to check the status of their applications on-line, thereby freeing time for telephone representatives to handle other matters.

"InfoPass" is a new USCIS program that worked so well during its testing in Miami that it has been put into use nationwide. Using InfoPass, the public can go online (using one of 12 available languages) to schedule an appointment with a USCIS representative at their local district office. While InfoPass appointments are not available for all types of issues, it can eliminate the long hours formerly spent waiting in line to talk with a representative about many immigration problems.

The biometrics program uses the latest in modern technology to permit the electronic storage of fingerprints, photographs, and signatures. This program will eliminate the redundancy of repeating fingerprinting and photos, while granting USCIS and law enforcement personnel access to this information nationally.

In July, 2004, USCIS implemented an interim rule, permitting the issuance of five-year employment authorization documents for certain classes of immigrant and non-immigrant workers. Prior to that, "EADs" had to be renewed annually. The extension of this authorization period is expected to generate a large decrease in the workload of those USCIS representatives responsible for EADs, so that they may concentrate on conducting background and security checks for all applicants.

In addition to the national programs described above, USCIS is currently testing many initiatives in some localities. Results of those tests may lead to further national changes to reduce the backlog.

Dawn Figueiras

Back To The Top

Immigration Law News
CAP FOR H-1B VISAS REACHED ON FIRST DAY OF FY 2005

In Fiscal Year 2003, the number of H-1B visas available to foreign professional workers was 195,000. In Fiscal Year 2004, this number was dropped to 65,000. By February, 2004 (only four months into the government's fiscal year), this cap had been reached. On the first day of Fiscal Year 2005 (October 1, 2004), the government announced that it had already reached the annual cap of 65,000 H-1B visas. Political pressure has mounted for Congress to increase the number of H-1B visas available, but, at least for now, employers will have to wait until Fiscal Year 2006 before their petitions will be considered. (To have a petition considered for FY 2006, employers can submit petitions after April 1, 2005.)

Dawn Figueiras

Back To The Top

NLRB: REGULAR EMPLOYER AND TEMPORARY AGENCY MUST AGREE TO INCLUDE EMPLOYEES IN SINGLE BARGAINING UNIT

In M.B. Sturgis, Inc., 331 NLRB 1298 (2000), the National Labor Relations Board (NLRB) held that a bargaining unit could include temporary employees (temps) obtained from a temp agency and the employer's regular employees of the employer utilizing the temps. First, this decision made it easier for unions to represent temps working for a regular employer (lumping them in with the regular employer's employees), and in the unionized setting, it provided unions with the argument that temps should be given all of the benefits of a collective bargaining agreement (CBA) negotiated for the employer's regular employees. The latter situation is evidenced in Gourmet Award Foods, 336 NLRB 872 (2001).

In Gourmet Award Foods, an employer whose drivers and warehousemen were covered by a CBA expanded its use of temps in response to increased business. The union demanded that the employer apply the CBA to the temps, and the NLRB agreed. The Board decided that the temps were jointly employed by the employer and the temporary agency that supplied them, and therefore the temps were automatically added to the existing unit. Under the Board's recent decision in Oakwood Care Center, 343 NLRB 76 (2004), the temps could not be included in a bargaining unit unless all employers (the temp agency and its client) agreed to their inclusion.

In Oakwood Care Center, the Board reversed M.B. Sturgis, and held that only if all employers agree may a bargaining unit include temps and regular employees. The Board concluded that such units constitute "multiple employer units" under the National Labor Relations Act, and such units are appropriate only if all employees involved "clearly and unequivocally" consent to such units.

When M.B. Sturgis first was decided, AFL-CIO President John Sweeney declared that the decision was "an important step" in organizing temps. But when the decision was reversed by the Board, Sweeney accused the Board of "increasingly siding with employers" and "denying workers their federally protected rights to form unions."

Observation: Oakwood Care Center will hamper union efforts to organize temps, because the affected employers will not likely consent to including temps and regular workers in a single unit. This decision also will assist unionized employers in rejecting union demands to provide temps with the same wages, terms, and working conditions given to regular employees.

Mark M. Lawson

Back To The Top

IN 2004, THE NLRB RETURNED TO ITS FORMER POSITION OF LIMITING WEINGARTEN RIGHTS TO UNIONIZED WORKPLACES

In a June 9, 2004 decision, the NLRB returned to its pre-2000 position and held that employees in non-union settings are not entitled to have a coworker join and perhaps represent them in any investigative interviews that they believe could result in disciplinary action ("Weingarten rights"). In IBM Corporation, 341 NLRB No. 148 (2004), the NLRB overruled the Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (2000) decision that extended Weingarten rights to non-union employees. We reported the Epilepsy Foundation decision in our July - September, 2000 edition of Business Lines.

Background.

The legal issues stem from Section 7 of the National Labor Relations Act (the "Act"), which grants employees the right to "engage in ... concerted activities for the purpose of mutual aid or protection." Under Section 8(a)(1) of the Act, it is an unfair labor practice to "interfere with, restrain, or coerce employees in the exercise" of their Section 7 rights. In NLRB v. Weingarten, 420 U.S. 251 (1975), the United States Supreme Court ruled that Section 7 of the Act grants employees in unionized workplaces the right to representation during investigative interviews that they reasonably believe could result in disciplinary action. Those Weingarten rights only applied to unionized workplaces until the Epilepsy Foundation decision extended them to non-union workplaces as well. Fortunately for employers, the Epilepsy Foundation doctrine was short-lived.

Facts:

The facts in the IBM Corporation case involved a non-union employer who conducted investigatory interviews in response to a complaint of workplace harassment. The employer conducted the interviews after denying the three interviewed employees' requests to have a coworker present. All three employees were discharged approximately a month after the interviews. The discharged employees alleged that the employer violated Section 8(a)(1) of the Act by denying their requests to have a coworker present during their interviews. Applying the Epilepsy Foundation decision, the administrative law judge agreed, and found that employer violated the Act. The employer appealed the administrative law judge's decision to the NLRB.

The NLRB's Analysis and Conclusions

The NLRB reexamined its Epilepsy Foundation decision and concluded that policy considerations support the denial of Weingarten rights in non-unionized workplaces. Those policy considerations include the rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country. Other policy considerations the NLRB weighed include the following:

(1) Coworkers do not represent the interests of the entire work force. In unionized work settings, the union officials who would represent employees during investigatory interviews "are bound by the duty of fair representation to represent the entire unit. Whatever the union representative accomplishes inures to the benefit of the entire unit, not just the individual employee. A coworker in a nonunion setting, on the other hand, has no such obligation to represent the entire work force."

(2) Coworkers cannot redress the imbalance of power between employers and employees. In union settings, "the presence of a union representative at a meeting with an employer puts both parties on a level playing field inasmuch as the union representative has the full collective force of the bargaining unit behind him." This is not so in a non-union setting, where the "coworker chosen on an ad hoc basis does not have the force of the bargaining unit behind him," nor a union representative's knowledge of the workplace and its politics.

(3) Coworkers do not have the same skills as a union representative. Union representatives can facilitate the interview by using their unique skills and experience to eliminate extraneous material, which can save the employer valuable production time. He can also propose solutions to workplace problems. A coworker is unlikely to bring such skills to the interview, because of his lack of experience in these matters. Indeed, he could frustrate or impede the employer's investigation because of his personal or emotional connection to the employee being interviewed. Even worse, the coworker may be a non-objective witness to the charge being investigated.

(4) The presence of a coworker may compromise the confidentiality of information. "Union representatives, by virtue of their legal duty of fair representation, may not, in bad faith, reveal or misuse the information obtained in an employee interview." Coworkers, however, are under no such legal constraint.

After weighing these factors, the NLRB concluded that "on balance, the right of an employee to a coworker's presence in the absence of a union is outweighed by an employer's right to conduct prompt, efficient, thorough, and confidential workplace investigations. It is [the NLRB's] opinion that limiting this right to employees in unionized workplaces strikes the proper balance between the competing interests of the employer and employees." Therefore, a nonunion employer is free to conduct the investigatory interviews it deems necessary to enforce its workplace and safety rules without the burden of a third-party interfering with the process.

Eric W. Reecher

Back To The Top