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. For more go to->
http://www.azcentral.com/abgnews/articles/0110abg-labor0110.html