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NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings

The National Labor Relations Board's (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings. In a memorandum released February 27, 2015, to the field, Richard F. Griffin, Jr., NLRB General Counsel, noted that although the National Labor Relations Act (NLRA) protects all covered employees regardless of immigration status, related issues may affect remedies and present obstacles to enforcing the NLRA.

The new memo provides updated procedures that apply when immigration status issues are raised during NLRB investigations and proceedings. The new procedures require that regions immediately contact the assigned representative(s) in the Division of Operations-Management as soon as they become aware that immigration status issues may affect the ability to remedy or litigate a potential ULP violation. Operations-Management will: (1) provide technical assistance; (2) determine whether interagency engagement could assist in effectuating the NLRA; (3) discuss with the region and/or ask the region to submit to advice on whether it may be appropriate to seek certain additional remedies; and (4) coordinate the agency's response to these issues.

The memo states that in cases where immigration status issues may affect the NLRB's ability to remedy or litigate a potential ULP violation, Operations-Management will work with the region to determine whether:

  • potential discriminatee(s) and/or witness(es) could be eligible for a U or T visa, or for deferred action, and whether the NLRB should certify and/or facilitate this process;
  • it is appropriate to refer the case to the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices pursuant to the NLRB-OSC's Memorandum of Understanding;
  • it is appropriate to engage with the Department of Homeland Security regarding their enforcement operations.

In meritorious cases, Operations-Management and, where appropriate, the Division of Advice will consider whether additional remedies should be sought to address potential limitations on back pay and reinstatement that may arise. The memo states that in this regard, the region should also explore and bring to the attention of Operations-Management any alternative remedies the region seeks and/or that a charging party advances as necessary or appropriate.

MEMO (scroll down to GC 15-03, "Updated Procedures in Addressing Immigration Status Issues That Arise During ULP Proceedings," February 27, 2015).

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