Beware the Bonbon Eating Immigrants

By Timothy R. Koch

In 2002, by a five-to-four decision, the Supreme Court ruled that an undocumented worker, Jose Castro—illegally laid off from his minimum-wage job making polyvinylchloride pellets because he participated in an unsuccessful unionization campaign—was not protected by the National Labor Relations Act (NLRA).  Hoffman Plastic Compounds, Inc., v. NLRB, 535 U.S. 137 (2002).

The employer, in fact, had broken numerous laws in laying-off all of those involved in organizing for improved working conditions.  The National Labor Relations Board (NLRB), given the statutory power to fashion remedies for such labor violations, ruled that Hoffman Plastics must provide back pay for each employee it illegally discharged—without respect to the citizenship of the employee.  Id. at 141-142.  The NLRB reasoned that an employer who breaks the law cannot avoid remedial action by claiming that, since the employee was illegally in the country, the employer was equally free to act illegally.  Id.  Furthermore, the Department of Justice—including the Immigration and Naturalization Service (“INS”)—supported the NLRB’s position as one that would strengthen the aims of not only the NLRA but also, as importantly, the Immigration and Reform Control Act of 1986.  Id. at 161.

During oral arguments, Justice Scalia opined that the INS’s agreement with the NLRB “explains why we have a massive problem of illegal immigration.” Further, Scalia characterized any undocumented worker in Castro’s situation—having been outed as undocumented and thus unable to mitigate any back pay award—as thus able to declare; “I can just sit home and eat chocolates and get my backpay.”  (Transcript of Oral Argument at 28, 33, Hoffman Plastic Compounds, 535 U.S. 137 (2002) (No. 00-1595).)

Chief Justice Rehnquist, in authoring the majority opinion, was scarcely less contemptuous:  “Though we found that the employer had committed serious violations of the NLRA, the Board had no discretion to remedy those violations by awarding reinstatement with backpay to employees who themselves had committed serious criminal acts.”  Hoffman Plastic Compounds, 535 U.S at 143 (emphasis added).  Rehnquist further wrote; “Indeed, awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.” Id. at 150.

In this one decision, the Court reckoned that our nation’s immigration and labor policies were incompatible (as if immigration is in no way a labor issue); that the NLRB acted beyond its congressional mandate when it sought to remedy this clear violation of labor law; and that neither the NLRB nor the INS was due the Supreme Court’s deference—apparently finding it to be irrational to hold employers accountable for their misdeeds whenever undocumented workers are the ones being mistreated.

What is more, the putative logic set forward in the majority’s opinion is nothing short of mind-boggling: how will allowing US employers to mistreat undocumented workers without financial penalty do anything but further encourage these employers to continue and even expand their practices?  The appeal to employers to use undocumented workers is actually amplified because employers do not need to afford the same rights and protections to those employees as they do to documented workers.

Perhaps even more disturbing is the majority’s criminalization of the poor: Jose Castro’s lack of documentation was cast as a more egregious violation of law than Hoffman Plastic’s blatant union-busting and illegal laying-off of workers with families to support.  Was Castro’s crime that he lacked proper documentation, or that, as a minimum-wage worker in a plastic chemicals plant, he threatened Hoffman’s bottom line by aspiring for better working conditions for his fellow employees?

To reach its decision that an employer owes no protections to certain laborers whose work helps to fill its coffers, the Court set aside the findings of every relevant agency that weighed in on this case and decided that immigration policy is best served when employers are held unaccountable to undocumented workers.  All of this to prevent the horror of out-of-work Mexicans eating bonbons paid for by the owners of toxic-chemical plants.

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