The U.S. Supreme Court ruled 5-4 March 27 that an undocumented worker fired for union activity has no recourse to the National Labor Relations Board (NLRB) to get monetary compensation in the form of back pay.

Labor and immigrant rights advocates fear that a broad interpretation of this ruling could threaten both immigrant workers and efforts by the labor union movement to organize them.

The decision in Hoffman Plastic Compounds v. NLRB broke down along predictable lines. Chief Justice William Rehnquist wrote the majority decision in which Justices Scalia, Thomas, Kennedy and O’Connor concurred. Justice Breyer, supported by Justices Souter, Ginsburg and Stevens, wrote a scathing dissent.

The case originated with an undocumented Mexican immigrant, Jose Castro, who had obtained a job with Hoffman, a California plastics company, by presenting false documentation. In 1989 Hoffman fired him and three others for union organizing activity (with the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO). Castro complained to the NLRB, which eventually awarded him $67,000 in back pay.

The case went to the Federal Appeals Court in Washington D.C., with the AFL-CIO supporting the NLRB decision as “friend of the court.” The court upheld the NLRB decision. Hoffman then appealed to the United States Supreme Court.

Rehnquist based his majority decision on the fact that a 1986 law, the Immigration Reform and Control Act (IRCA), made it illegal for companies to hire the undocumented. Castro never should have been hired in the first place, reasoned Rehnquist, especially as he had committed fraud by using false documents to get the job.

To interpret U.S. labor law as giving Castro recourse to the NRLB to get back pay, Rehnquist argued, would undermine the whole basis of U.S. immigration policy, which he interprets as being mainly aimed at keeping undocumented immigrants from coming here and getting jobs, and not at all aimed at preventing them from being exploited and abused by employers.

Breyer’s dissent took apart Rehnquist’s argument, pointing out that labor law is designed to prevent union busting and exploitation of workers, and that in past cases the NLRB has successfully ruled that undocumented workers should be compensated if their labor rights were violated by the employer. “May the employer ignore the labor laws?” wrote Breyer. “May the employer violate those laws with impunity, at least once – secure in the knowledge that the [NLRB] cannot assess a monetary penalty?”

Further, Breyer strongly disagreed with Rehnquist as to whether this decision would keep undocumented immigrants out of the United States. Rather, said Breyer, it would encourage employers to hire more undocumented workers, because they would now know that such immigrants will think they have to put up with abuse and exploitation without any recourse to the NLRB. For example, employers of undocumented immigrants could be pretty sure that they would be even less willing than they are now to seek unionization to defend their interests, because the employer would be able to fire them with impunity for their union activities.

Labor and immigrant rights activists reacted with outrage to this news, which was buried in moderate-sized stories in the corporate-controlled U.S. press but was headline news in Mexican papers and in the Spanish language media here.

Rehnquist’s notion that immigrant exclusion policy trumps all other laws, let alone considerations of justice, equity and the public good, is perhaps the most troubling aspect of the decision to many.

Labor activists feel that the decision is a serious blow to efforts to organize immigrant workers, but promise that they will respond by intensifying their efforts to do so.

Further, they point out that this decision only increased the importance of fighting for an amnesty or legalization for the 7 million or more undocumented workers in the United States.

Arturo Rodriguez, president of the United Farm Workers, predicted that “unscrupulous employers” will deliberately hire only undocumented workers so that they can “fire them when they try to assert their rights.”

Eliseo Medina, vice president of the Service Employees International Union, concurred, adding that his union will respond by increasing the struggle for unionization as well as for legalization of all immigrant workers.

The author can be reached at pww@pww.org

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