Employer That Hires Undocumented Aliens Cannot Refuse To Bargain With Their Union
The influential U.S. Court of Appeals for the District of Columbia has ruled that an employer cannot refuse to bargain with a union that represents illegal immigrants that the employer hired. In Agri Processesor Co. Inc., v. National Labor Relations Board, (Jan. 4, 2008), a New York City employer hired a number of undocumented aliens to work at a kosher meat processing plant. A majority of plant workers sought to improve their working conditions by electing the United Food and Commercial Workers Union as their union representative.
Instead of sitting down at the bargaining table with the democratically elected union, the employer chose to violate federal labor law. The employer claimed it had no obligation to bargain with a union that represents illegal aliens, even though the employer hired these employees. The employer also claimed that the National Labor Relations Board had no power to craft a bargaining unit that included both illegal aliens and legal residents. The NLRB and the D.C. Circuit Court easily rejected these arguments. They cited to a U.S. Supreme Court case that held that the National Labor Relations Act, which is the federal labor law that applies to the private sector, defines “employee” to protects legal and illegal residents. “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” the Supreme Court ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984).
In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB cannot provide certain financial relief to illegal aliens, such as backpay to immigrants fired in violation of the NLRA. But as the D.C. Circuit pointed out, Hoffman Plastic did not change the basic rule from Sure-Tan: illegal aliens have the right to join unions and be free from anti-union retaliation.
Regardless of one’s position on illegal immigration, the D.C. Circuit’s decision in Agri Processor is a victory for unions and a rebuke of employer’s illegal efforts to undermine employee free choice. Agri Processing shows states that employers cannot rely on its own question hiring practices to justify illegally refusing to negotiate with unions elected by employees.