Company Must Bargain Impacts Of Requirement That Employees Fill Out New I-9 Forms

CATEGORY: Client Update for Public Agencies, Fire Watch
CLIENT TYPE: Public Employers, Public Safety
DATE: Jun 08, 2021

In 2010, Frontier Communications Corporation (Frontier) took over Verizon’s West Virginia operations.  In 2013, Frontier discovered that it did not have I-9 forms for many, if not all, of the former Verizon employees who stayed on with Frontier.  Because neither Frontier nor Verizon could locate the forms, Frontier sought to obtain new I-9 forms from all affected employees.

The Communications Workers of America, AFL-CIO, District 2-13 (the Union) asked to bargain over the process the employees would follow to complete the forms.  Frontier maintained that it was not obligated to bargain, but it agreed to discuss the issue with the Union.  Following a meeting with Frontier, the Union ultimately encouraged its members to complete new I-9 forms.

In late 2018, Frontier conduct an audit and discovered “extensive” noncompliance with I-9 form requirements, including forms that were not supported by documentation.  Frontier determined that it needed to obtain new I-9 forms from approximately 95% of all employees hired after November 6, 1986, and before March 31, 2018.  Frontier then notified employees by email about the need to submit new I-9 forms.

The Union objected that this was similar, if not identical, to what occurred in 2013 and requested that Frontier provide a list of the employees who had incomplete or incorrectly completed I-9 forms.  It also demanded bargaining on the issue.  However, Frontier declined to provide the list, arguing that the Union had no right to the information.  Frontier also indicated that since federal immigration statutes required Frontier to have valid I-9s on file for employees, it was not required or permitted to bargain over its “straightforward” decision to comply with these laws.  Frontier eventually provided a 17-page list of the affected employees, but the Union continued to demand bargaining.  The Union also asked Frontier to provide additional information, including the specific deficiency for each I-9 form and where the I-9 forms at issue were stored.  Frontier did not provide this information.

In September 2019, Frontier advised the Union that starting September 27, 2019, it planned to send out letters to a group of employees who had not yet completed a new I-9 form.  In the sample letter it sent the Union, Frontier noted that if an employee failed to comply with the I-9 form verification process, Frontier may treat the employee as voluntarily terminated for failure to satisfy a federal employment requirement.  By October 2019, five employees had not yet completed the I-9 form.  Frontier again notified the Union of its intent to send a “final notification” to these employees.  During this time, the Union continually requested to bargain.

The Union subsequently filed an unfair labor practice charge.  The National Labor Relations Board’s (NLRB’s) General Counsel issued a complaint alleging that Frontier violated the National Labor Relations Act (NLRA) by refusing to provide the Union requested information and refusing to bargain over the effects of requiring employees to complete new I-9 forms.  An Administrative Law Judge (ALJ) heard the case in August 2020.

The ALJ concluded that Frontier violated the NLRA when it refused to provide the Union with an opportunity to bargain over the effects of its decision to require employees to submit new I-9 forms.  The ALJ reasoned that while Frontier’s argument that it did not have to bargain over the decision to require new forms had merit, the Union still had a valid interest in effects bargaining to explore options for reducing or avoiding the impact on employees.  The ALJ also concluded that Frontier violated the NLRA by failing to provide the Union with information it requested about the specific deficiencies in each I-9 form and where the faulty forms were stored.  Because Frontier had a duty to bargain with the Union over the effects of its requirement that employees submit new I-9 forms, the information the Union sought was presumptively relevant to the Union’s role as the exclusive collective-bargaining representative.  Frontier appealed.

On appeal, the NLBR affirmed the ALJ’s decision.  The NLRB ordered Frontier to bargain with the Union and provide the information it had requested about the specific deficiencies in each I-9 form.  The NLRB also directed Frontier to display notices at all of its facilities that it had violated this labor law.

Frontier Communications Corp. & Communications’ Workers of Am., AFL-CIO, Dist. 2-13, No. 09-CA-247015 (May 26, 2021).


While NLRB precedent is not binding on PERB, NLRB decisions often provide persuasive guidance in construing California’s public sector labor relations statute – the Meyers- Milias- Brown Act (MMBA).  This case provides guidance on two issues that are very relevant to MMBA compliance:  1) the duty to provide a recognized employee organization information relevant to bargaining; and 2) the duty to bargain the impacts of a non-negotiable decision.

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