Court rebuffs NLRB, OKs illegal-worker unions

Companies can't refuse to negotiate with unions even if they find that many of the laborers who formed them are in this country illegally, a federal appeals court has ruled.

In a split decision, the majority acknowledged that the 1986 federal Immigration Reform and Control Act makes it illegal for any firm to knowingly employ undocumented workers. And that law requires companies to fire any worker who is not authorized to be here.

But Judge David Tatel, who wrote the majority opinion, said that doesn't mean the union, formed before the company discharged the illegal workers, is not valid. More to the point, he said the firm cannot now refuse to bargain with that union.

That conclusion irked Judge Brett Kavanaugh, who said the company should be able to overturn what he said was a "tainted union election."

The case involves Agri Processor Co., a New York firm that deals in kosher meats.

But the ruling is significant nationwide because it was handed down by the Court of Appeals for the District of Columbia, which adjudicates disputes over the National Labor Relations Act.

At the center of the dispute is that law's definition of what constitutes an "employee."

Attorneys for the firm, pointing to the 1986 immigration law, said the undocumented workers, by definition, could not be employees. That, they said, made the election in which they participated invalid.

The National Labor Relations Board disagreed, which led to this appeal.

Tatel said the exceptions in the labor act include agricultural laborers, domestic workers, individuals employed by a spouse or parents, and independent contractors. He pointed out that nowhere is there any language saying the worker must be in this country legally.

Tatel acknowledged the immigration law was enacted after the labor act. But he said that law never altered the labor law's definition of an employee.

"Where two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective," he wrote.

Tatel also pointed to the report of the House Judiciary Committee, which was considering the federal immigration law.

"It is not the intention of the committee that the employer-sanctions provision of the bill be used to undermine or diminish in any way protections in existing law, or to limit the power of federal or state labor relations boards," that report states.

In fact, the report specifically cites a U.S. Supreme Court decision that says the purpose of the federal labor law "helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment."

But Kavanaugh, in his dissent, said the federal immigration law was approved after that Supreme Court ruling. And that, he said, "changed the legal landscape," a change the judge said effectively alters the definition of who is an employee.


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