David Bacon: The Political Economy of Migration

DC Circuit: undocumented are employees under NLRA

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D.C. Circuit Confirms that Undocumented Workers are Employees Under NLRA

In a 2-1 decision (Agri Processor Co. v. NLRB), the D.C. Circuit has held that undocumented workers can still be classified as employees under the NLRA. Following the Supreme Court's holding in Hoffman Plastics that undocumented workers are not entitled to backpay under the NLRA, it is no surprise that employers pushed the issue further. But, as BNA's Daily Labor Report (subscription required) explains, the D.C. Circuit refused to go along:

A New York kosher meat company must recognize a United Food and Commercial Workers Union local as representative of its workers even though many of the workers are undocumented aliens . . . . With all three members of the D.C. Circuit panel writing, Judge David S. Tatel wrote for the majority that Agri Processor Co. Inc. was required to bargain with the local, even though many of the employees were later discovered to be undocumented, because of the expansive definition of "employee" under the National Labor Relations Act.

The majority found that while the IRCA may have made hiring an undocumented worker illegal, it did not necessarily mean that the NLRA's definition of "employee" had been amended. "[T]here is absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of 'employee' includes undocumented aliens," Tatel said. "Thus, the NLRA's plain language, as applied by the Supreme Court in Sure-Tan, continues to control after IRCA, as the Seventh, Ninth, and Eleventh Circuits have all held."

[T]he majority also] said that despite changes to the status undocumented workers by IRCA, nothing in the legislative history indicated an intent to modify the NLRA. Instead, the D.C. Circuit pointed to two passages in legislative history that support an opposite conclusion--that labor rights were unaffected by the new law. Rejecting the company's argument that Congress intended to end job protections when it made it illegal to hire undocumented workers, the D.C. Circuit said "it is quite possible that even as Congress barred employers from hiring undocumented aliens, it still intended for the NLRA to apply to such aliens." . . .

In a dissent, Judge Brett M. Kavanaugh argued that because the workers were not permitted to work legally under the Immigration Reform and Control Act passed in 1986, the U.S. Supreme Court's ruling in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) was outdated. While concurring with the majority, Judge Karen LeCraft Henderson called the requirement to bargain with illegal workers "somewhat peculiar" and agreed that Sure-Tan may be outdated, but still said it was up to the Supreme Court or Congress to alter the law.

I think the court got it right here. Even the Supreme Court in Hoffman did not say that the undocumented workers at issue were not employees--that decision only limited the NLRB's remedial power. Moreover, the vast majority of cases dealing with other statutes consider undocumented workers as employees; indeed, many of those statutes, such as the FLSA, have been interpreted to permit backpay notwithstanding Hoffman. Finally, giving protection for undocumented workers is the better choice as a matter of policy. One of the problems with Hoffman was the Court's failure to recognize that allowing employers to refuse to abide by workplace laws with respect to undocumented workers both undermines the goals of IRCA and hurts the rights of documented workers. That ability makes undocumented labor cheaper than documented work and, given the near-total lack of enforcement of IRCA, employers would have a strong incentive to increase their use undocumented workers.

-JH

Why Immigration will blow up in GOP's face

On December 4, I attended a forum in NYC, organized by the Labor Research Association, on "The Immigration Debate: Now What for Labor?"

Good talks were given by Eliseo Medino from Change to Win, and Ana Avendaño from the AFL-CIO.

But the presentation I found most interesting was by Simon Rosenberg of NDN, which bills itself as a progressive think tank and advocacy organization.

In a nutshell, Rosenberg's argument is that the uniformly anti-immigrant pronouncements of the GOP candidates are going to absolutely scuttle their chances of winning the presidency. Bush "won" partly by garnering 38-40% of the Hispanic vote, which he was able to do by assiduously cultivating the Spanish language media (and saying different things there from what he said to his Anglo supporters). Since the GOP has so uniformly fled from any form of road to legalization, Latinos have fled from the GOP. Ironically, immigration is not one of the top issues for the American public in general; it is, however one of the top issues for Latinos. Rosenberg analyzes how the electoral college vote would be different if Latino support for Republicans is at about the level it is today rather than what it was in '04. It's a pretty interesting -- and hopeful-- analysis.

The whole presentation can be downloaded in pdf form from the NDN site. It's worth a look.

A corollary of this argument is that immigration CANNOT be used as a wedge issue by the Republicans. It is just too dangerous for them, since they are they ultimately need all the undocumented workers in this country. In fact, not only Rosenberg but most if not all the other speakers agreed that immigration cannot be this year's gay marriage.

However, it is hard not to notice that the Republicans do not seem to have figured this lesson out. They are, of course, all using immigration as a wedge issue.

Stupidity or death wish? I can only hope it's both.