The recent decision of the Supreme Court in the case of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board makes it plain that the Court’s majority lives in denial of the social reality millions of working people face every day. The Court began by making worse an already bad precedent. As a result of a previous decision in the case of Sure-Tan Inc. v. National Labor Relations Board, millions of undocumented immigrants lost the right to be reinstated to their jobs if they were fired for joining a union. Now the Rehnquist Court says they can also forget about back pay for the time they were out of work.
The decision rewards employers who want to stop union organizing efforts among immigrant workers–the very people who’ve built a decade-long track record of labor activism, often organizing themselves when unions showed little interest in them. Their bosses can now terminate undocumented workers who join a union, without monetary consequences.
But the Court’s logic goes further, willfully ignoring social reality. Today in 31 percent of union drives employers illegally fire workers, immigrant and native-born alike. Federal labor law may prohibit this, but companies already treat the cost of legal battles, reinstatement and back pay as a cost of doing business. Many consider it cheaper than signing a union contract. In the Court’s eyes, however, retaliatory firings are not even a violation of law.
William Gould IV, former chair of the National Labor Relations Board, points to “a basic conflict between US labor law and US immigration law.” The Court has held that the enforcement of employer sanctions, which makes it illegal for an undocumented immigrant to hold a job, is more important than the right of that worker to join a union and resist exploitation on the job.
According to Rehnquist, Jose Castro, the fired worker in the Hoffman case, committed the cardinal sin of falsely saying he had legal status to get a job. This lie, told by millions of workers every year, is winked at by employers who want to take advantage of immigrants’ labor. It is only in the face of union activity that bosses suddenly wake up to the fact that their workers have no papers (and usually then fire only the ones involved with unions).
This decision isn’t about enforcing immigration law, despite Rehnquist’s pious assertion that employers can already be fined for hiring people like Castro. It’s about money. When it becomes more risky and difficult for workers to organize and join unions, or even to hold a job at all, they settle for lower wages. And when the price of immigrant labor goes down, so do the wages for everyone else. The decision has already been misused by some employers, who have told their immigrant workers they no longer have the right to organize at all, or have illegally refused to pay them the minimum wage or overtime.
A recent study by the Pew Charitable Trust counts almost 8 million undocumented people in the United States. They make up almost 4 percent of the urban work force, and more than half of all farmworkers. The flow of workers across the border will not stop anytime soon. The National Population Council of Mexico reports that “migration between Mexico and the United States is a permanent, structural phenomenon–the intense relationship between the two countries makes it inevitable.”
Sacrificing the rights of those workers will not stop people from crossing the border, nor end the need for the work they do. If they are to have legal status, the door to legal immigration must be opened and sanctions repealed. But come they will, regardless. The Court’s message to them, however, is: Know your place. Do the work, stay in the shadows, accept what you are given and never think of organizing to challenge the structure that holds you in chains.