California growers are urging the state's Agricultural Labor Relations Board to take action that could effectively gut the state's farm labor law and encourage growers to employ more illegal aliens than ever before.
The growers want California to follow last summer's U.S. Supreme Court ruling that an illegal alien who is fired for supporting a union cannot collect back pay or win reinstatement. Because the workers aren't legally entitled to be here in the first place, the high court ruled, they must be "deemed unavailable for work."
In other words, even though federal law makes it illegal for an employer to fire a worker for joining a union, employers can violate the law without serious penalties as long as the target of the action is an illegal alien.
Adopted Own Law in 1975
The implications of the decision are invidious and far-reaching.
The state's farm labor board does not feel bound by the Supreme Court ruling because federal labor law excludes farm workers; in 1975 the state adopted its own law for labor issues affecting farm workers.
But, if the state board follows the lead of the Supreme Court with a similar interpretation of California law, illegal aliens could no longer be effectively protected from abuses by growers.
It is estimated that at least 70% of the state's farm workers are here illegally. Thus, only the remaining 30% of farm workers would be protected by the state labor law if it is revised in accordance with the high court's ruling. The law would be rendered ineffective because union formation would become extremely difficult. Union formation, after all, requires approval of a majority of workers.
Also, while growers deny it, they will no doubt be tempted to hire even more illegal aliens if they know that these workers can be fired or otherwise punished for supporting a union.
Contempt of Court Threat
Marion Quesenbery, attorney for the Western Growers Council, said such a temptation to growers could be limited if the courts issue a cease-and-desist order that would prevent growers from firing illegal aliens for supporting a union. In that way, growers could be punished for contempt of court even though they could not be forced to reinstate the workers or give them back pay.
But enforcement of a cease-and-desist court order is a lengthy process and would not directly help fired workers. As a result, even with such an order, it is unlikely that illegal aliens would feel free to defy their bosses' threats to fire them if they support a union.
The new legal incentive for employers to hire illegal aliens comes as a record number of job-hungry foreign workers enter this country illegally to compete for jobs with domestic workers.
In the past fiscal year, U.S. Border Patrol apprehensions of illegal aliens were 30% higher than the record 1 million illegals taken in the previous year, and far more illegals slip past the border undetected than are caught.
Linda Wong, a lawyer with the Mexican-American Legal Defense and Education Fund, estimates that 70% or more of California's 250,000 to 350,000 farm workers are illegal aliens. There are an estimated 1 million illegal aliens working in the state, according to the federal Immigration and Naturalization Service.
Until the Supreme Court ruling, the National Labor Relations Board had been ordering employers to reinstate even illegal aliens to their jobs and to give them back pay if they were treated illegally.
California's state farm labor law incorporated the same policy. Since the law was enacted 10 years ago, an estimated 6,000 farm workers, including illegals, have collected nearly $5 million in back wages. Most were reinstated to their jobs as a result of orders from the state farm labor board.
Case Began in 1976
The U.S. Supreme Court decision that could change all that involved eight illegal aliens who had been employed by Sure-Tan, a small Chicago leather company.
The case began in 1976 when the illegals signed cards saying they wanted to be represented by the Leather Workers Local 431.
The company president, John Surak, admitted that he knew that almost all of his employees were in this country illegally. But he was happy paying them relatively low wages and did nothing about their illegal status until the union won a representation election.
Then Surak hit back. He quickly dispatched a letter to the Immigration and Naturalization Service informing the agency of his workers' illegal status and urging that they be arrested.
Federal immigration agents complied, and the workers agreed to go back on their own to their native Mexico as a substitute for forced deportation.
The Supreme Court said the workers were, indeed, entitled to the protection of federal labor law and it even deplored Surak's letter to the INS. The court said the company had committed an unfair labor practice by calling on INS authorities to arrest the aliens because they supported the union.
The company, noting that it is not illegal to hire illegal aliens, said it was only exercising its "First Amendment right to petition the government" when it called on the INS to do its duty.
In an opinion written last July by Justice Sandra Day O'Connor, the Supreme Court said that, while reporting a violation of the law "ordinarily should be encouraged," it was an unfair labor practice to do so when motivated by an "anti-union animus."
But the court concluded that the employer was not required to rehire the workers or to give them back pay because the workers were in this country illegally and had voluntarily returned to Mexico.
The California growers want the state farm labor board to come to the same conclusion. But, since the growers do not expect the board to do that, they have already asked the federal courts to force the state to comply with the Supreme Court decision.
The state agency ruling, expected soon, will be based on a case involving five farm workers who were fired by Rigi Co., which farms 417 acres of vineyards near Napa. The workers, all illegal aliens, were fired after they supported the United Farm Workers of America in an unsuccessful 1981 election campaign.
The next year, Rigi was ordered by the state agency to rehire the workers and to pay them back wages. But, based on the subsequent Supreme Court decision, Rigi appealed to the farm labor board for a new hearing.
Out of that hearing, held last week, and the court case that is expected to follow may come the new incentive for growers to hire more illegal aliens than ever--and the gutting of the enforcement powers of the state farm labor agency.
The situation could be changed dramatically, however, if Congress acts on pending immigration legislation that would make it illegal for U.S. employers to knowingly hire illegal aliens.
If that happens, illegal aliens will still not get much help if they are abused by their employers. But such incidents presumably would diminish substantially because employers would be subject to punishment for hiring illegals in the first place. Employers would not be in a good legal position to exploit illegal aliens.
Wage Hikes Lower
Offsetting that news, though, was a separate report from the Bureau of Labor Statistics showing that, while union workers are earning substantially more than their non-union counterparts, non-union workers received wage hikes of 4.5%, compared to 3.3% for union workers, in the 12 months ended last September. That figure wasn't in the AFL-CIO News' story.
And mentioned in only one sentence of the labor paper's story were government figures showing that membership in unions has dropped 2.7 million since 1980, going from 23% of the work force in that year to 18.8% in 1984. Union membership as a percentage of non-farm workers peaked at 35.5% in 1945.
Union workers made up 13.5% of all employees in the service sector in 1980, but the figure dropped to 10.5% by 1984. In government, union membership held almost steady at 35.7% in 1984, compared to 35.9% in 1980.
Despite organizing efforts among women, only 13.8% of working women belonged to unions in 1984, compared to 15.9% four years earlier. Last year, 23% of working men belonged to unions, compared to 28.4% in 1980.
Despite the membership declines, government figures showed substantial advantages to union representation.
Overall, the median weekly wage of unionized workers 16 years of age or older was $405, compared to $303 for non-union workers.
And the advantage holds up for workers in comparable industries. Union construction workers earned a median $539 a week, compared to $306 for non-union construction workers.
Median Wage of $352 a Week
The BLS report showed that black workers had a median wage of $352 a week under union contracts, compared to $236 a week for non-union blacks. Women represented by unions earned a weekly median of $301, compared to $218 for those not covered by union contracts.
Other notable labor statistics came out in a study released last week by the AFL-CIO's industrial union department:
- Of the 100 major labor contracts surveyed, 75% included provisions that limit the right of employers to parcel out work to subcontractors.
- More than 50% of all the union contracts surveyed provided 11 paid holidays a year, compared to only 18% in 1971.
- About 30% of the contracts provided for six weeks of vacation annually and 50% gave workers five weeks off with pay. A 1974 survey showed that only 14% of the contracts had five weeks or more of vacation.