[Type the company name] | Illegal Immigrants and The NLRA: | Protection for All? | | | |

What rights are illegal immigrants afforded under the National Labor Relations Act? |

This paper seeks to investigate whether or not illegal immigrants should be protected under the National Labor Relations Act (NLRA). An illegal immigrant (alien) is anyone who is foreign borne and has entered the United States of American without examination or admitted provisionally and stayed past the time they are required to leave (http://cis.org/illegal). Once reading this definition, as outlined by the Center for Immigration Studies; precisely one would say no, he or she is here illegally. We will first question why individuals have entered the country illegally, their reason for being here, employer responsibly, the Immigration Reform and Control Act and how or why should illegal workers be protected under the NLRA.
Illegal aliens accounted for 21% of the foreign born population in the U.S in 2000 with that number increasing to 28% by 2005. With numbers steadily increasing each year, many have begun asking why. Where are the immigrants coming from and why are so many entering into the United States? Statistics show that Mexico is the biggest importer of legal and illegal immigrants (http://cis.org/illegal). More than half of the Mexicans living in the U.S. in the year 2000 were illegal (Edwards, 2000). By 2004, 10.5 million legal and illegal Mexican immigrants were living in the U.S. making this the greatest influx of foreign-born individuals since the Mid-nineteenth century. By 2005, 56 percent of Mexican immigrants entering the region were illegal.
Wide economic disparity, a 2,000 mile border with the United States, Mexican immigrants here who would harbor illegal aliens and better job opening are several reasons why Mexico is a leading importer of illegals. Job opportunity is the biggest incentive to immigrate to the United States. The lure of the having the world’s “highest standard of living”, along with a safe and secure place to live, push individuals to enter America by any means necessary (Edwards, 2000). In the year 2000, the average hourly earnings in Mexico were only $1.80. In the U.S. that number increased by 3 to 4 times, making the decision to illegally migrates to the U.S. a strong incentive. Statistics show the majority of undocumented workers migrated to Texas, and California. The states provided immigrants with easy access and the opportunity to work farm lands. Now that we know whom, why, and how illegal immigrants enter into the U.S. let us look at what affect this has had on employers.
With estimates of 12 million undocumented immigrants living in America, many find business by working under the table (paid in cash). Immigrants frequently have worked in jobs that require manual, low paying labor (Pearce, 2008). Typically, these types of jobs go to workers with the lowest education. Finding U.S. citizens to perform these types of jobs has been increasingly hard. The pool of Americans finishing high school has increased steadily over the past decade. Higher education requires employers to pay higher wages. Documented workers or not, employers are unable to find citizens who would be willing to perform this type of labor.
With such a drastic increase in illegal immigrants entering the U.S., Congress enacted the Immigration Reform and Control Act (IRCA) in 1986. The Act sought to reduce business opportunities available to undocumented workers through employer sanctions. The Act barred employers from knowingly hiring unauthorized workers, failing to verify employment eligibility, and knowingly continuing to hire undocumented workers (http://www.uscis.gov/). Included in the Act was the need for a newly hired employee to complete an I-9 form, and provide employment eligibility verification to the employer.
A system known as E-Verify was setup to verify employment eligibility. Employers can freely enter into a “memorandum” with the Department of Homeland Security and the Social Security Administration. The memorandum allows employers to receive notice of an individual’s eligibility status. When preliminary notice is received an employee can challenge the notice. If authentication cannot be confirmed, the employer may terminate the employee and will not be civilly or criminally liable (Goodson & Richardson, 2008). Even with E-Verify in place there are roughly 3.2 million undocumented workers employed in America.
We see that workers are here and working illegally, but does that give the workers’ rights under the employment law? An employer wants to prevent a union campaign and decides to lay off those workers who have participated in union activities. Several of the employees happen to be undocumented workers. Should undocumented workers be covered under the National Labor Relations Act? The National Labor Relations Act established in 1935 by Congress to protect the rights of employers and employees, to promote collective bargaining and to restrict certain private sector labor and management practices, which can damage the general welfare of workers, businesses and the U. S. economy (http://www.nlrb.gov/national-labor-relations-act). Under Section 2. [§152.], of the NLRA, the term employee is defined as “including any employee”, who has ceased doing as a consequence of any current labor dispute or because of any unfair labor practice (http://www.nlrb.gov/national-labor-relations-act). There is no distinction between legal and illegal worker.
In 1986, the Supreme Court ruled in the case of Sure Tan v. National Labor Relations Board in favor, of the NLRB’s protection to illegal aliens (Vogel, 1998). Let us delve a little deeper into this case to see why the Court agreed with the NLRB’s support of the employees. In 1976 Sure Tan employees voted to elect Local Union 431 as their bargaining representatives. Hours after the election, the president of the company cursed the employees and demanded to see their immigration status. Upon determining that several of the employees were prohibited, the employer filed a petition with the NLRB to hold the election voided. The employer surmised that six of the seven voters were illegal aliens, making them ineligible voters. Along with the petition, the company also filed an affidavit admitting he knew the workers were undocumented (Vogel, 1998).
The NLRB ruled against the employers’ petition, causing the company to write a letter to the Immigration and Naturalization Service (INS) asking the agency to investigate the immigration status of the workers. When the INS raided the company they arrested the employees, who in-turn voluntarily left the United States to avoid deportation (Vogel, 1998). Sections 8(a) (1), (3) and (4) of the NLRA states that upon review of this case it was determined that the employer violated several sections of the NLRA act. Sections 8(a) (1), (3) and (4) of the NLRA states it shall be an unfair labor practice for an employer to interfere with or coerce employees, it is unfair for an employer to discourage membership in any labor organization, and it is unfair to discharge or otherwise discriminate against an employee (http://www.nlrb.gov/national-labor-relations-act). The employer violated the Act by attempting to intimidate the employees from the union, by cursing and demanding to know the employee’s immigration status. The employer then discriminated against the employees further by calling the INS on the workers. The Supreme Court ruled in favor of the NLRB, leaning heavily on the fact that the employer discouraged employees from the union and that there was no law prohibiting employers from knowingly hiring undocumented workers. In this example, the illegal workers were covered under the NLRA. Is this always the case when involving illegal immigrants? Will the NRLA always rule in their favor? Let us look at another case involving undocumented workers and the NLRA.
In 1989, Mr. Jose Castor was terminated by his employer Hoffman Plastic for participating in union organizing activities, in the workplace. The NLRA stepped in and ruled that the employer violated Section 8 (a) (3) of the National Labor Relations Act. The Act states that it is unreasonable for an employer to discharge or discriminate against an employee for participating in union activities. The NRLB ruled that the employee was to be reinstated and win back pay. During the reinstatement hearing, Mr. Castro admitted that he was an illegal immigrant and used forged documents to enter the United States and obtain employment with Hoffman Plastic.
When the company heard this information he argued that the Board did not have the authority to approve back pay and the reinstatement of Mr. Castro. The Administrative law Judge who heard the case agreed that the employees should not receive back pay. The NLRB reversed the decision and granted Mr. Castro back pay from when the knowledge of being an illegal immigrant came to light. Eventually the case went before the Supreme Court, who instead of ruling on the issue of having entered the U.S. illegally as the employer argued, instead ruled that the NLRB could not award back pay to undocumented workers. The Court stated that awarding back pay to undocumented workers contravened IRCA policies (Schwartz & Vu, 2008).
The passing of the Immigration Reform and Control Act (IRCA) amended the INA. The Immigration and Nationality Act (INA) was originally the Bracero program. The program was an agreement between the United States and Mexico that allowed workers to come to the U.S to assist with the labor shortage that was created because of the demands of War World II. The amendment to the INA states it is illegal for employers to hire undocumented immigrants (http://www.uscis.gov). The Supreme Court further stated that if the NLRB awarded back pay it is condoning and encouraging violations of U.S. immigration laws (Schwartz & Vu, 2008). The Court concluded that Mr. Castro, would have to mitigate damages by seeking other employment, and that would further abuse immigration laws. The Court did acknowledge that the NLRB could order the employer to post notices of employee rights under the NLRA and detail unfair labor practices (Schwartz & Bu, 2008).
The Hoffman Plastics situation created quite a bit of fall out with different interpretations coming out of the Supreme Court ruling. In the case of Agri Processor Co v NLRB, the Circuit Court of Appeal for the District of Columbia was divided over whether undocumented workers are declared employees under the National Labor Relations Act. In 2005 workers of the Agri Processor Company voted to join the United Food and Commercial Workers Union. In an attempt to avoid bargaining with the union, the employer ran the Social Security Numbers of the employees, discovering that several of the numbers came back belonging to different or nonexistent individuals (Pierce, 2010). The company then used this finding to assert those undocumented workers were not considered “employees” as defined by the NLRA. The employer argued that the election was invalid thus Argi did not have a responsibility to bargain with the union. The union filed a declaration of unfair labor practices citing Section 8 (a)(1) and (5) of the NLRA stating it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the right guaranteed in” the Act or “refuse to bargain collectively with the representatives of his employees”, respectively (https://nlrb.gov/national-labor-relations-act).
An Administrative Law Judge considered the Board precedent that the employer had violated the NLRA ruling, therefore the employer had to negotiate with the union. The employer in turn, filed a petition on the grounds that undocumented workers could not be employees under the NLRA because the Immigration Reform and Control Act made it illegal to employ the workers. The Court in turn, ruled that the NLRA’s straightforward interpretation of the term employee and the Supreme Court’s decision in Sure Tan v The National Labor Relations Board declared illegal workers are employees under the NLRA. The Court concluded that “extending the coverage of the NLRA to illegal workers is consistent with the Act’s worth (http://www.justice.gov/osg/briefs). The purpose of the Act is to protect employees’ right to collectively bargain.
Let us look at another case involving the NLRB and illegal immigrants. A concrete corporation has three crews, with 7 workers in each crew. Each team has native Spanish speakers and a supervisor who also is a native Spanish speaker. The company operated under two payrolls, with payroll 1 consisting of the non-Spanish speakers and payroll 2 containing the native Spanish speakers. Payroll 1 employees received salary by company check with deductions and taxes taken out. Payroll 2 employees received payment in cash with no documentation records or taxes recorded (DeMaria, 2006).
A Spanish speaking union representative visited the company several times collecting authorization cards from 18 workers. If a majority, of authorization cards are collected a union can seek certification. That is exactly what the union did, with a majority of signed authorization cards the union sought recognition on June 2, 2003(DeMaria, 2006). The response from the employer came the next day. The supervisor called a meeting to announce the employer wanted nothing to do with the union. He also stated a $1 raise would be given to any employee who could prove by documentation that he deserved to be on Payroll 1. In other words, the employee could prove he or she was not an illegal immigrant.
The employer has already discriminated against the employees by initially separating the groups by their status, legal and illegal. Then the employer tried coercing employees from joining the union by offering the employees a dollar raise. Remember, the NLRA protects the rights of employees from unfair labor practices. We know that an election has to be held in order for employees to vote in favor of the union. The employer has the supervisor’s conduct an employee meeting in which it is stated anyone who votes in the election will be terminated. This event is held 24 hours prior to the union election. The employer has violated the captive audience rule. Captive audience is when an employer holds a meeting within 24 hours of a union vote, during normal working hours where employees are forced to listen to anti-union rhetoric.
Under normal circumstances, this kind of tactic is legal, but the organization crossed the line when threats of being terminated were introduced. The employer is again trying to coerce and intimidate the employees from voting for union representation. In a last ditch effort to avoid bargaining with the union, the employer uses an internet based “people finder” to determine whether or not the employees are authorized. When the case is brought before the NLRB the issue of using people finder, is not even considered. The employer could not now choose to comply with the IRAC to a void union activity. The Board stated that complying with another statute does not justify one from unfair labor practices. In doing so the company was retaliating against the employees, in Sections 7 of the NLRA employees have the right to organize , join or assist labor organizations (https://nlrb.gov/national-labor-relations-act).
The employer has all along been willing to ignore the Immigration Reform and Control Act as long as he held sway over the employees. Once the employees choose to unionize the employer tried to use the law in his favor. The case ended with the Board concluding that the organization was indeed in violation of Sections 7 and 8(a)(1) and (2) of the NLRA. Requiring the employer to rehire several employees that were terminated the issue of back pay was not heard in this case.
In each case, we have seen the Supreme Court ruling in favor of the National Labor Relations Board. The Board effectively applied unfair labor practices to issues involving undocumented workers. The question remains, where do we draw the line when protecting illegal workers? Is the NLRA furthering the rights of illegal aliens? What of the ethical stance of the attorneys for the NLRB? Is their enforcement of the rights of undocumented workers counterintuitive (Duff, 2009)?
What is the central theme in all cases we have reviewed? The theme is that, under the NLRA, all workers regardless of their immigration status are considered employees. The second theme is that although an employer may be required to rehire illegal employees, the employer is not necessarily required to issue back pay. I have come to the conclusion that although the NLRA does in fact, protect the rights of all employees regardless of their legal status in the United States, they do so at a cost. The price I think is that of citizens’ rights.
Having citizenship inherently comes with certain rights in the United States. Citizenship offers maximum rights available in the United States ( http://www.usimmigrationsupport.org/citizenship.html). Giving citizens the legal right to participate in and contribute to the economic and political affairs of the Nation, along with security and protection under the law (Lee, 2008). Although immigrants are entering the U.S. illegally, individuals are receiving all rights legal citizens have. Undocumented workers are able to obtain employment, combat unfair treatment on the job through the NLRA, and gain better wages and a safe working environment (Lee, 2008).
Yes, undocumented workers have contributed to the U.S. in many areas such as economics, culture, and art. Illegal immigrants have even gone as far as to protest and demand the fair treatment legal citizens receive (Lee, 2008). If one is able to obtain all rights legal citizens, have, what incentive is there to become a citizen? Case in point, Jennifer Gordon founded the Workplace Project in Long Island New York. Ms. Gordon organized workers to picket against unfair wages and working conditions. What was produced was the Unpaid Wage Prohibition Act of 1997. The act adopted in New York made failure to pay an individual minimum wage a felony.
These acts performed by undocumented workers have been termed “non-citizen citizenship” (Lee, 2008). The workers are participating in the democratic process by organizing in the workplace, debating with legislators, and campaigning to change existing laws. Is it a stretch to say that illegal immigrants are practicing the same techniques unions employ? Whether it been in the public eye or behind closed doors, all undocumented workers are not willing to picket in the streets. Many employ subversive resistance tactics while secretly working towards better wages, longer breaks and fair treatment (Lee, 2008).
Several cities have cropped up in the U.S. as being “Sanctuary Cities”. San Francisco is considered one of the largest that has created “membership” for undocumented immigrants in their local communities, giving the immigrants all rights citizens have. The cities have even adopted confidentiality policies, requesting city government employees refrain from reporting the immigration status of individuals to the immigration authorities. It is my belief that one principle should not trump another. Why should the NLRA be able to guarantee the rights of workers regardless of their legal status? Should an employer be forced to rehire an illegal immigrant only to face possible sanctions for doing so?
Once the employer rehires the undocumented employee does he then again terminate the employee based on the Immigration Reform and Control Act? I am at a loss as to where the questions will end. Perhaps that should be left up to someone else to ponder. The determination is that under the NLRA employees are guaranteed protection from unfair labor practices. All employees regardless of whether he or she has entered the United States legally or illegal are afforded that right. To answer the question originally asked, should illegal immigrants receive protection under the National Labor Relations Act, I have to answer yes. The proper question should be, is it correct to provide illegal immigrants with buffer under the National Labor Relations Act.