In September 2005, Morgan, Brown & Joy successfully defended its client’s decision to discipline employees who had been identified in a Social Security Administration (“SSA”) no-match letter. This case is one of the first arbitration decisions to rule that an employee who fails to correct a no-match letter discrepancy may be subject to discipline under the parties’ collective bargaining agreement.
In UFCW, Local 91 v. Shaw’s Supermarkets, Inc., Case No. 1130 82 05, Shaw’s received a no-match letter from the SSA identifying 32 employees whose names and Social Security numbers did not match SSA records. After receiving the SSA’s letter, the Company advised the 32 employees to correct the information with either the Company’s records (if the error is found to be there) or directly with the SSA (if the error is found to be there), and provided the employees with the contact information of the local SSA office. The Company initially provided the employees with 30 days to either correct the discrepancy or to inform the Company that the corrections were in process. The deadline was subsequently extended and ultimately the employees received 9 months to address the situation. When the 32 employees failed to correct the information (or notify the Company that a correction was in process), Shaw’s terminated their employment. The Union grieved the terminations.
Shaw’s argued that the failure of the employees to obtain any correction to or provide any explanation of the no-match of the names or social security numbers over a 9 month period placed it in the untenable position of exposure to a charge of having constructive knowledge that it was continuing in employment unauthorized aliens within the meaning of Federal immigration law. The Union argued that the failure to produce or offer a correction does not rise to the level of constructive knowledge and that the no-match letter itself counsels employers that a no-match letter should not be interpreted to mean that an employee is not authorized to work. The Union relied on arbitration decisions which found for the employee in similar circumstances.
The Arbitrator agreed with the Company and concluded that the employees’ failure to comply with Shaw’s repeated requests to resolve the “no-match” justified Shaw’s decision to discipline the employees. The Arbitrator relied on the management rights clause of the Collective Bargaining Agreement, as well as “legitimate concerns of INS violations and liability as well as a specific pecuniary ‘stake’ that its’ 6.2% Social Security payroll tax is legitimately tendered.” The Arbitrator modified the remedy to a suspension without pay, and offered reinstatement without back pay or accumulated seniority for the suspension period to any employee who was able to remedy the no-match problem within 90 days.