Supreme Court Injures
Jose Castro wanted to have a union because the worked in a low-wage shop. Little did he know that his decision to organize
would lead to his firing and, 13 years later, a Supreme Court decision that injures the rights of workers to gain union representation.
The Supreme Court, in its Hoffman Plastic Compounds v. NLRB decision on March 27, ruled that Castro and other
immigrant workers who are fired for organizing a union are not entitled to back pay. The ruling will make union organizing even more
Castro worked for Hoffman Plastic Compounds in Los Angeles. To gain better wages and conditions, Castro and his co-workers
organized with the United Rubber Workers (since merged with the United Steelworkers). Hoffman struck back in January 1989, with what a
Supreme Court Justice termed "crude" and "obviously illegal" tactics, including the firing of Castro and three other
The National Labor Relations Board ruled the company’s unionbusting was illegal. But companies face no penalties for
breaking the law to crush union organizing. The NLRB can only order employers to cease and desist from violations of the law, post a
notice of the order, and offer reinstatement and back pay to the victimized workers. That’s what the Labor Board did in the Hoffman
Hoffman appealed the NLRB’s ruling. During the trial that followed, Castro admitted that he lied about his immigration
status to get his minimum-wage job. On the basis of that disclosure, the NLRB decided that Castro’s back pay would be limited to the
period between the date he was illegally fired and the date the employer "discovered" he was undocumented.
That decision had little impact on the injustice inflicted on Castro, but it was too much for Hoffman — and ultimately,
for a 5-4 Supreme Court majority.
The Supreme Court concluded that the Immigration Reform and Control Act of 1986 (IRCA) trumps the National Labor Relations
Act. IRCA makes it a crime for an immigrant employee to use fraudulent documents in the employment verification process required by the
law. (It is not a crime to fire a worker for organizing a union.) The Supreme Court said that technically, a fired worker without papers
has not been "harmed" and therefore cannot receive a remedy.
'LESS INCENTIVE TO RESPECT THE LAW'
Judge Stephen Breyer, who wrote the minority opinion, rejected this argument. He pointed out that the NLRB had reconciled
the two laws by limiting Castro’s back pay in line with IRCA. And Breyer argued that denying back pay to undocumented workers illegally
fired for union organizing would only encourage bosses to hire such immigrants, since there would be less financial incentive to respect
Prior to passage of IRCA, the Supreme Court in its 1984 Sure-Tan, Inc. v. NLRB affirmed the Labor Board’s award
of back pay for undocumented workers but waffled on reinstatement. Those deported by running afoul of unionbusting bosses would not get
their jobs back.
In effect, the Supreme Court has decided enforcement of immigration law is more important than making sure that federal
law protects the right of workers to organize. But the Court was only following Congress — according to federal law, it’s a crime for
worker to use false documents to get a job but not a crime for a boss to fire a worker exercising a fundamental human right, organizing a
'A VICTORY FOR UNIONBUSTERS'
"This Supreme Court decision is a major victory for every unionbusting boss that breaks the law in order to deprive
workers of their right to have a union," says UE Genl. Sec.-Treas. Bruce J. Klipple. "It’s a big setback to every unorganized
worker who seeks a voice on the job.
"What’s more, it’s a bonus to every unscrupulous employer who hires undocumented workers on the assumption they’ll
be less likely to complain about low pay, dangerous conditions and lack of respect," Klipple says.
"Look at the numbers. There’s about 8 million undocumented workers in the United States now, and that number is not
going to drop," the UE officer says. "If it’s riskier for workers to organize, the wages of those workers will remain low, and
all of us will suffer.
"UE remains committed to immigrant workers’ rights, because we’re committed to an aggressive struggle to improve
the conditions of all workers," Klipple concludes.
UE News - 4/02