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The Supreme Court ruled last wednesday that undocumented workers illegally fired for union activities can not collect back pay. This ruling is seen as encouraging employers to exploit the undocumented even more.
The Supreme Court ruled on Wednesday that an undocumented worker fired for union activism is not entitled to redress from the National Labor Relations Board in the form of back pay. The AFL-CIO and other unions and immigrants' rights groups quickly denounced the decision, and promised a stronger fight for immigrant workers' rights and legalization of the undocumented.
In 1989, the Hoffman Plastics Products co. in California fired undocumented worker Jose Castro and three others because they were circula6ting union representation cards for the United Cork, Rubber, Linoleum and Plastic Workers of America, AFL-CIO. Castro complained to the National Labor Relations Board, which ruled that the company had acted illegally and awarded him $67,000 in back pay. The Court of Appeals in Washington DC. upheld this ruling. Hoffman then appealed to the Supreme Court. Chief Justice Rehnquist wrote the majority opinion overrulling the NLRB's award of back pay, and O'Conner, Kennedy, Scalia and Thomas concurred. Justice Breyer, backed by Soutor, Ginsburg and Stevens vehemently dissented from the ruling.
Rehnquist's logic was that a 1986 law, the Immigration Reform and Control Act (IRCA) had made it illegal for an undocumented person to work in the US. Thus Castro should not have been working in the first place, especially as he had presented false documents to get the job. However, Breyer pointed out in the dissent that the net effect of this ruling will be to encourage companies to hire undocumented workers and then fire them as soon as they try to defend their rights, knowing that the worker has no recourse to a financial award.
The AFL-CIO and other labor groups, including the Farm Labor Organizing Committee in Ohio, Vice President Eliseo Medina of SEUI and president Art Rodriguez of the farmworkers, quickly denounced the ruling and pointed out that it could do a huge amount of damage if broadly interpreted as precedent. Employers faceed with unionization drives will be encouraged to retaliate with impunity against those workers they believe to be undocumented. Other questions are raised: Does this ruling potentially affect issues not directly related to unionization dirves? What if an undocumented worker is fired because he or she complained to OSHA about dangerous and unhealthy working conditions--could the company also fire this worker with impunity? How does this affect collective bargaining contracts? And so forth.
Medina of SEIU promised that the fight to unionize immigrant workers, as well as the fight for legalization or amnesty for the undocumented, will now have to be intensified to counterbalance the potential harm caused by this ruling.



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