Court Rules Aliens Have Full Union Protection

In a victory for immigration rights groups and labor unions seeking to recruit illegal aliens as members, the U.S. 9th Circuit Court of Appeals on Tuesday restored full union rights and protections to undocumented workers fired in violation of federal law.

A split decision by a three-judge panel of the court, written by Circuit Judge Harry Pregerson of Los Angeles, said illegal aliens can unionize and must receive the same protections of job reinstatement and back pay afforded to U.S. citizens and legal resident aliens by the National Labor Relations Board.

In ruling in favor of three undocumented workers who were laid off their jobs in 1981 by Felbro Inc., a South Gate metal fabricating company, Pregerson overturned a recent policy of the NLRB holding that illegal aliens are not eligible for back pay even if unfairly fired from their jobs.

Policy Changed After 1984

The NLRB, which previously had treated undocumented workers like any other workers involved in labor grievances, changed its policy after a 1984 Supreme Court ruling in a Chicago case, in which back pay was denied to five illegal aliens who had voluntarily returned to Mexico after losing their jobs.

The Supreme Court ruled in the Chicago case that back pay could not be awarded because the dismissed employees were “unavailable for work” while living outside the United States, but Pregerson ruled Tuesday that the decision was not meant to apply to undocumented workers who remain in the United States after losing their jobs.

Criticizing the NLRB’s interpretation of the 1984 Supreme Court ruling, Pregerson said it effectively stripped undocumented workers of any rights and actually encouraged unscrupulous employers to single out illegal aliens for unfair labor treatment in violation of other NLRB regulations.

He also suggested it would encourage some employers to hire illegal aliens instead of U.S. citizens.

“The victims would be not only undocumented workers, but also American and documented alien workers,” Pregerson wrote. “Unscrupulous employers would be encouraged to hire undocumented workers for the competitive advantage that an environment relatively free of labor safeguards may offer.”

Garment Union Filed Challenge

The challenge to NLRB policy was made by Local 512, Warehouse and Office Workers Union, International Ladies Garment Workers Union. A San Francisco lawyer for the union, Michael Rubin, said the decision will have a “huge impact” on union efforts to organize undocumented workers in California.

“It tells these people that they have the same rights as any other union members, and it encourages the unions to recruit them,” Rubin said.

The union’s West Coast regional director, Steve Nutter, said the “great majority” of an estimated 100,000 garment workers in California are undocumented workers, and added that most of them are not union members. He said the decision could effect not only garment workers, but also thousands of other undocumented workers in the hotel and restaurant industry.

“This is a very, very important case for unions in Los Angeles and other areas of the country,” Nutter said. “The NLRB’s interpretation was that these people have no rights. This gives them the right to organize and receive the same benefits and protections that other workers have.”

An attorney for Felbro Inc., Norman Kirshman, said the firm plans to appeal the decision, criticizing it as an additional incentive for undocumented workers to enter the country illegally.

“It’s going to increase the influx of illegal aliens,” he said. “Now they have a governmental guarantee to be paid. It’s an inducement for them to come into the country in violation of the law.”

Joining Pregerson in the decision was Senior U.S. District Judge William J. Jameson of Montana. Dissenting was Circuit Judge Robert R. Beezer of Seattle, who argued that the Supreme Court did not intend its 1984 ruling to apply only to illegal aliens who had left the country.