Amicus Curiae Brief — Hoffman Plastic Compounds, Inc. v. NLRB

No. 00-1595

C10 mol

IN THE

Supreme Court of the United States

HOFFMAN PLASTIC COMPOUND, INC.,

Petitioner.

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Wait or CERTIORARI TO THE

Unitrep STaTes Court OF APPEALS

FOR THE District oF Co_umBiA CIRCUIT

Brief of Amici Curiae National Employment Law Project,

Mexican American Legal Defense and Educational Fund,

Asian American Legal Defense and Education Fund, Coalition

for Humane Immigrant Rights of Los Angeles, et al.

in Support of Respondent

JAMES REIF REBECCA SMITH

Counsel of Record NATIONAL EMPLOYMENT

GLADSTEIN, Reif & MEGINNISS Law Project, INc.

817 Broadway, Sixth Floor 407 Adams Street, SE. Suite 203

New York, NY 10003 Olympia, WA 98501

(212) 228-9160 (360) 534-9160

JAMES WILLIAMS Leticia SAUCEDO

CATHERINE K. RUCKELSHAUS JOSEPH BERRA

NATIONAL EMPLOYMENT MEXICAN AMERICAN LEGAL DEFENSE

Law Project, INc. AND EDUCATIONAL FUND

55 John Street, Seventh Floor 140 East Houston Street

New York, NY 10038 San Antonio, TX 78205

(212) 285-3025 (210) 224-5476

Attorneys for Amici Curiae

TABLE OF CONTENTS

Table of Cited Authorities ..............050e005-

Statement of Interest of Amici Curiae ...........

— 4. & a en

pebeceeoaeseegeees een eruneseeeseesee ees

A. Unscrupulous Employers Use Threats of INS

Raids to Chill Immigrants’ Exercise of Their

Workplace Rights. ............-++eeees:

i.

Employers in many industries hire

undocumented workers despite

DEEL Svenaadekbdesdeaeetebenseses

Retaliatory threats of INS raids are

common when workers seek to enforce

rights under the NLRA. ...........--

Employer retaliation is also common

when workers seek to enforce wage and

hour, discrimination, health and safety,

and other employment rights. ........

B. Without Back Pay As a Deterrent, Employer

Incentive to Hire and Abuse Casecnmentes

Workers is High. ............seeeeeeees

l.

Employer sanctions provide no deterrent

to employers who would retaliate. ....

12

19

21

Contents

Page

2. In a scheme without back pay, retaliation

imposes no cost on employers. ....... 24

> = left unremedied, employer retaliation

against undocumented workers chills all

WORDNET GHD, 5 oss ceec beeueey ue 25

ere ee 27

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Accent Maintenance Corp., 303 N.L.R.B. 294

Dee nébdavebteveraceeseoces 16

Ansoumaaa v. Gristede’s, No. 00-0253 (S.D.N_Y.

i hobo eeécngucedescecoece 21

A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B.

408 (1995), aff'd sub nom. NLRB v. A.P.R.A. Fuel

Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997)

i ce tedene sheeeeocceces 11, 14, 22, 24, 27

Breakfast Productions, Inc., 293 N.L.R.B. 607

DUE nh eh eeekedddebedoaccceccecces 16

Caffe Giovanni, Inc., 259 N.L.R.B. 233 (1981) ... 17

Consolidated Edison v. NLRB, 305 U.S. 197

EEE ES SO ee 24

Contreras v. Corinthian Vigor Insurance Brokerage,

Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998) .... 4,19

Corrugated Partitions West, Inc., 275 N.L.R.B. 894

DEE e Le pet eubeesecdccecesoccecse 17

DeCanas v. Bica, 424 U.S. 351 (1976) .......... 25

Del Rey Tortilleria, Inc., 272 N.L.R.B. 1106 (1984),

order enforced by NLRB v. Del Rey Tortilleria,

823 F.2d 1125 (7th Cir. 1987) ..............4. 16

iv

Cited Authorities

Page

Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115

See EEE aidenedesanctdbioaneedcaucswas 27, 28

Does I through XXIII v. Advanced Textile, 214 F.3d

SOP EEE odoncbodeedkedés sek veda 20

Fuentes v. INS, 765 F.2d 886 (9th Cir. 1985), vacated

as moot, 844 F.2d 699 (9th Cir. 1988) ......... 21

Futuramik Industries, Inc., 279 N.L.R.B. 185

SUPE cecdscncccdeesédeudsiadsacessdvekac 17

Hasa Chemical, Inc., 235 N.L.R.B. 903 (1978)... 17

Impact Industries, Inc., 285 N.L.R.B. 5 (1987),

remanded, 293 N.L.R.B. 794 (1989) .......... 15

Impressive Textiles, 317 N.L.R.B. 8 (1995) ....... 15

John Dory Boat Works, inc., 229 N.L.R.B. 844

ec beed acnecccaiietessischadenl beuken 17

John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d

Sr es Gs IE dic 0 bcncachtostekecees 26

McKennon v. Nashville Banner Publishing Co.,

PEP a SEED écdUiecectnabtdhabucndie 26

Nash v. Florida Indus. Comm'n, 389 U.S. 235

GPE nv'vbi eed ddatendbddbacenieseenietaies 26

NLRB vy. Apollo Tire Co., 604 F.2d 1180 (9th Cir.

DOU. Sodudnr dccccueusabbbeian keankae 16

——

v

Cited Authorities

Page

Patel v. Quality Inn South, 660 F. Supp. 1528

(NLD. Ala. 1987) .......-2 cece eee eeeeeenees 21

Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.

Pr been eee eneaeeeneeesreee ees 20, 21

Phelps Dodge Corp. v. NLRB, 313 U.S. 177

CIDE on cccccccccccccccccccsccovcsccccces 24

6 West Lid. Corp. v. NLRB, 237 F.3d 767 (7th Cir.

BUD cccccccdss cedcdsvcvesccedsecccccccce 15

Sun Country Citrus, Inc., 268 N.L.R.B. 700

CBDBE 6 cccnccccccccccccccccpesccesoceces 17

Superior Truss & Panel, Inc., 334 N.L.R.B. 115

CRBGED 0c cgccccccccccccccccscceccecccoccse 18

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ..... 13

United States v. Alzanki, 54 F.3d 994 (1st Cir. 1995),

cert. denied, 516 U.S. 1111 (1996) ........... 19

Urrea v. New England Tea & Coffee Co., 2000 WL

1483215 (Mass. Super. 2000) ............+++- 19

Viracon, Inc., 256 N.L.R.B. 245 (1981) ......... 17

Statutes:

8 U.S.C. § 1324a(b)(1 (A) (1994) ......-- 20 eee. 22

29 U.S.C. § 151 (1994) ... 2.66. cece eee eens 12

vi

Cited Authorities

Page

SOUBGE. BRR CIEE bcos deccccassveave 6

BP UDG. B ERED cc cescvcosacecscecs 6

Other Authorities:

T. Alexander Aleinikoff, J/legal Employers,

Am. Prospect, Dec. 4, 2000 ..............45. 14

‘Deborah Alexander, Nebraska Beef Faces Federal

Indictments, Omaha World-Herald, Dec. 7,

I A tanita acta a a ae en ee ee ail 22

David Bacon, /mmigration Law — Bringing Back

Sweatshop Conditions, Nov. 10, 1998, available

at <http://www.igc.org/dbacon/Imgrants/

SE oe én canes bentrédqesaseoteans 15

Margery Beck, INS Adds Nebraska Beef to Worker

Smuggling case, Lincoln Journal Star, Nov. 17,

PEE octpadcodcercssuqcasebeewnnseces tons.

Linda Bosniak, Exclusion and Membership: The

Dual Identity of the Undocumented Worker Under

United States Law, 1988 Wis. L. Rev. 955

GREED cc ccesecdcucevnsedaboutessoeebanta 11, 23

Nancy Cleeland, Unionizing is Catch 22 for Illegal

Immigrants’ Jobs: Undocumented Status Makes

Them Vulnerable to Workplace Retaliation,

L.A. Times, Jan. 16, 2000, available at 2000 WL

BRE was ccddavedusapthdseddventteanems 14, 18

-_

vii

Cited Authorities

Page

Yochi J. Dreazen & Rudy Kleysteuber, Allegations

of Sexual Harassment in Arizona Put Immigration

Service and EEOC at Odds, Wall St. J., Aug. 22,

ME SUADAAGONRS Ne ast Sous deudeds Ube ceoe 20

Cecelia M. Espenoza, The Illusory Provisions of

Sanctions: The Immigration Reform and Control

Act of 1986, 8 Geo. Immigr. L.J. 343 (1994) ... 23

Louis Freedberg, JNS to Crack Down on Employers,

ee EG Eh BES ccccccivcccccoeses 24

General Accounting Office, GAO/GGD-99-33,

Illegal Aliens: Significant Obstacles to Reducing

Unauthorized Alien Employment Exist 6

SE aha Rdokcdbedcecedccceteqecete 9

Jennifer Gordon, We Make the Road By Walking:

Immigrant Workers, The Workplace Project, and

The Struggle For Social Change, 30 Harv. C.R.-C.L.

OS 2 Ee ee 11

David Griffith, Jones Minimal: Low Wage Labor In

the United States 157 (1993) ................ 10

H.R. Rep. No. 99-682(I), 99th Cong., 2d Sess.

(1986), reprinted in 1986 U.S.C.C.A.N. 5649,

PE Nasebibbdbadaccdnecavecesccerce 11,27

_LN.S., 1999 Statistical Yearbook of the Immigrazion

and Naturalization Service 4, available at <http://

www.ins.gov/graphics/aboutins/statistics/

vili

Cited Authorities

Labor Department: Close to Half of Garment

Contractors Violating FLSA, 1996 Daily Lab. Rep.

Gee GN Ge CUED nb utecccccccdedsees:

Thomas Maier, Workers Often Subject to Scare

Tactics, Newsday, Jul. 26,2001 ..............

John L. McIntyre, What Does “Lawfully Entitled to

be Present and Employed” Mean to You?:

Undocumented Workers & Make-Whole Remedies

under the NLRA, 22 U. Haw. L. Rev. 737

P< dcusntbbos evan nibcussteiueka ceca

William J. Murphy, Note, /mmigration Reform

Without Control: The Need for an Integrated

Immigration-Labor Policy, 17 Suffolk Transnat’|

is GE SPEED A Vo.dbecedEdhesKidcewaned

Lori A. Nessel, Undocumented Immigrants in the

Workplace: the Fallacy of Labor Protection cxd

the Need for Reform, 36 Harv. C.R.-C.L. L. Rev.

PEPE sbnc nccddpekscduscdbsececeuser

Panel, The New Americans: | Economic,

Demographic, and Fiscal Effects of Immigration,

National Academy Press (1997) ..............

Jeffrey S. Passel & Michael Fix, Testimony Prepared

for the Subcommittee on Immigration and

Claims, Hearing on “The U.S. Population and

Immigration,” Committee on the Judiciary,

U.S. House of Representatives (Aug. 2, 2001),

available at <http://www.house.gov/judiciary/

SRE GERSON bn kik c ccckecéesuckbioks

Page

27

22

24

Cited Authorities

Safety and Health: Three Sentenced in Scheme to

Hire Undocumented Workers to Remove Asbestos,

176 Daily Lab. Rep. (BNA) A-8 (2001) .......

L.M. Sixel, Aggressive Stance Urged for EEOC/

Witnesses Describe Abuse of Immigrants, Houston

Chron., June 23, 1999, available at 1999 WL

DEED bbb 0h cbucdn see cdscsegsdescucesees

Matthew Strozier, Immigrant Groups Call for End

to Workplace Raids, India Abroad, Oct. 23,

1998, available at 1998 WL 11376904 ........

Lena H. Sun & Peter S. Goodman, Poultry Firm to

Help INS Monitor Workers, Wash. Post, Oct. 23,

BOTS vcccccccccccccccccceseccescccvcences

(ov. 1999) on ccvcccccccccccccccvcvccecees

U.S. Department of Labor, FY 2000 Poultry

Processing Compliance Report (2000) ........

U.S. Department of Labor, Research Rep. No. 8,

Findings from the National Agricultural Workers

Survey 1997-98 (Mar. 2000) ........--eeeeeee

Page

20

l

STATEMENT OF INTEREST OF AMICI CURIAE

This amicus curiae brief is prompted by deep concern about

the difficulties encountered by immigrant workers, often among

the most poorly paid and poorly treated workers in our country,

when they attempt to exercise their legal rights to form a union

and engage in collective bargaining.' Through their experiences

as advocates for immigrant workers and immigrant organizing

groups, amici have gained extensive knowledge of the ways in

which unscrupulous employers can profit unfairly from the

hiring of undocumented immigrants: first, by employing a group

of workers who will work under conditions that their United

States citizen counterparts would not tolerate, and second, by

using threats to call the U.S. Immigration and Naturalization

Service (INS) as a tool to make certain that conditions do not

change.

Amici do not submit this brief to reargue the points already

submitted to the Court and the courts below. Rather, they seek

to demonstrate the devastating real-world effects — on workers,

on employers who comply with the law, and on the policies set

forth in our nation’s labor and immigration laws — of a decision

that undocumented immigrants are not entitled to back pay for

their employers’ violations of the National Labor Relations Act

(NLRA).

The National Employment Law Project (NELP) has worked

for over 25 years to advance the workplace rights of low-wage

workers, including many immigrant workers. Both directly and

through its network with local community groups, labor unions

and legal services organizations, NELP has represented

thousands of immigrant workers attempting to enforce their labor

1. This amicus curiae brief is filed with the written consent of all

parties, which is on file with the Clerk of the Court. The parties’ counsel

did not author the brief in whole or in part, and no person or entity

outside the organizations and attorneys listed on the brief has made a

monetary contribution to its preparation or submission.

2

rights. NELP attorneys have written, lectured, litigated, and

engaged in policy advocacy on behalf of low-wage immigrant

workers throughout the United States.

The Mexican American Legal Defense and Educational

Fund (MALDEF) is a national civil rights legal organization

founded in 1968 to promote and protect the rights of Latinos in

the United States through litigation, advocacy, and education.

MALDEFEF has a long history of advancing the civil rights of

Latino immigrants, primarily in the areas of employment,

education and constitutional nghts.

The Asian American Legal Defense and Education Fund

(AALDEF), founded in 1974, is a non-profit organization based

in New York City. AALDEF defends the civil rights of Asian

Americans nationwide through the prosecution of lawsuits and

the dissemination of public information. AALDEF has

represented numerous clients in claims against their employers

for various violations of the federal labor laws. AALDEF

believes that permitting employers to avoid the consequences

of labor law violations based on the citizenship status of the

employee undermines the rights of all workers.

The Coalition for Humane Immigrant Rights of Los Angeles

(CHIRLA) is a non-profit organization founded in 1986 to

advance the human and civil rights of immigrants and refugees

in Los Angeles. As a multiethnic coalition of community

organizations and individuals, CHIRLA aims to foster greater

understanding of issues that affect immigrant communities,

provide a neutral forum for discussion, and unite immigrant

groups to more effectively advocate for positive change.

CHIRLA’s Workers’ Rights Project addresses workplace justice

issues through advocacy, organizing, and policy reform.

The Farmworker Justice Fund (FJF) is a Washington, D.C.-

based litigation and advocacy organization for migrant and

seasonal farmworkers. During its seventeen-year existence, FJF

has sought to enforce and enhance farmworkers’ rights in the

3

areas of immigration, labor and employment law, occupational

safety and health, women’s issues and access to legal services.

Florida Immigrant Advocacy Center (FIAC) is a non-profit

agency with the mission to protect and promote the human rights

of immigrants of all nationalities. FLAC provides direct legal

representation and impact advocacy in areas of concern to

immigrants. FIAC also engages in public education and the

strengthening of immigrant communities. FIAC has offices in

Miami, Fort Pierce, Immokalee, and Krome Detention Center.

Additionally, FLAC, with others, formed the Florida Immigrant

Coalition in December 1998 and coordinates the Coalition.

The Coalition is a network of more than 25 groups working

together for fair policies for Florida’s immigrants.

The Illinois Coalition for Immigrant and Refugee Rights

(ICIRR) is a non-profit, non-partisan state-wide organization

whose mission is to promote the right of immigrants and refugees

to full participation in our society. Together with more than 100

member agencies, ICIRR is involved in advocacy, organizing,

community education and training, and service provision related

to immigrant rights. As an organization that was spawned by

the passage of the Immigration Reform and Control Act and a

leader in current immigrant rights campaigns, ICIRR and its

members have fought for fairness to immigrant workers.

The Immigration Rights Project (IRP) of the American

Friends Service Committee’s Central Regional office works to

help create an atmosphere in the State of Iowa in which Latino

immigrants can participate in the decision making process in.

their workplace, host community, city, and/or state. The IRP

carries out a multi-faceted approach, which includes community

organizing, education and advocacy efforts. It has been

instrumental in developing the lowa Immigrant Rights Network,

which advocates on policy and legislative levels for imanigrant

rights.

The Legal Aid Society - Employment Law Center (LAS-

' ELC) is a San Francisco-based public interest law firm that has

4

advocated for many years on behalf of the interests of low-wage

immigrant workers. LAS-ELC has a strong interest in the legal

protections available to workers who may have a precarious

immigration status, and particularly those who face employer

retaliation as a result of asserting their workplace rights. LAS-

ELC’s litigation in this area includes cases such as Contreras v.

Corinthian Vigor Insurance Brokerage, Inc., 25 F. Supp. 2d

1053 (N.D. Cal. 1998), the first reported federal case to hold

that undocumented workers are covered by the wage and anti-

retaliation protections of the Fair Labor Standards Act of 1938,

and are entitled to recover punitive damages for such retaliation.

As aresult, LAS-ELC and the communities it represents have a

strong interest in the issues implicated by this case.

The Massachusetts Immigrant and Refugee Advocacy

Coalition (MIRA) is the only organization in Massachusetts that

brings together groups serving immigrants and refugees from

many parts of the world of various nationalities, races, and

ethnicities. Combining capacity building, technical assistance,

community education, and policy advocacy with community

organizing and civic participation, MIRA is committed to

fairness for immigrants and to sound public policies. With 130

organizational members, MIRA is a respected state and national

leader on immigrant issues.

The National Asian Pacific American Legal Consortium

(NAPALC) is a national non-profit, non-partisan organization

whose mission is to advance the legal and civil rights of Asian

Pacific Americans. Collectively, NAPALC and its affiliates, the

Asian American Legal Defense and Education Fund, the Asian

Law Caucus and the Asian Pacific American Legal Center of

Southern California, have over 50 years of experience in

providing legal public policy, advocacy, and community

education on discrimination issues. As a leading national voice

on the rights of immigrants, NAPALC and its affiliates advocate

for the fair and nondiscriminatory treatment of immigrant

workers.

5

The National Council of La Raza (NCLR) is a leading

national civil rights organization established in 1968 to reduce

poverty and discrimination, and improve life opportunities for

Hispanic Americans. NCLR has chosen to work toward this

goal through two primary, complementary approaches: capacity-

buin ag assistance to support and strengthen Hispanic

community-based organizations, and applied research, policy

analysis, and advocacy on issues such as education, immigration,

housing, health, employment and training, and civil rights

enforcement affecting the Hispanic community. NCLR’s Policy

Analysis Center is the preeminent Hispanic “think tank” serving

as a voice for Hispanic Americans in Washington, D.C.

The National Immigration Law Center (NILC) is a national

legal support center dedicated to protecting and promoting the

rights of low-income immigrants and their family members.

Over the past 22 years, NILC has utilized its expertise on

immigration, public benefits, and employment laws to conduct

trainings, produce publications, and provide technical assistance

to legal aid programs, community-based organizations, churches,

clinics and social service agencies across the country. NILC also

conducts litigation to promote the rights of low-income

immigrants in employment, immigration and access to public

benefits.

NOW Legal Defense and Education Fund (NOW Legal

Defense) is a leading national non-profit civil rights organization

that uses the power of the law to define and defend women’s

rights. A major goal of NOW Legal Defense is the elimination

of barriers that deny women full participation in the workplace.

NOW Legal Defense’s Immigrant Women Program (IWP)

strives to protect and expand the rights of immigrant women

and their children. The overarching goal of the IWP is enhancing

the legal rights and basic economic security of immigrant

women.

The Nebraska Appleseed Center for Law in the Public

Interest is a non-profit, non-partisan law project committed to

6

equal justice for all Nebraskans. Nebraska leads the nation in

beef slaughter and production, which provides employment

opportunities for thousands of low-skilled workers, now mostly

Hispanic immigrants. Nebraska Appleseed works to protect the

legal and civil rights of these workers, through education,

negotiation, legislation, and litigation.

Pineros y Campesinos Unidos del Noroeste (PCUN) is a

union of agricultural and reforestation workers based in

Woodburn, Oregon. PCUN represents over 4800 workers, most

of whom are immigrants. Although much of its organizing is

with agricultural workers who are excluded from the protection

of the NLRA, many of its members work at least part of the

year in activities, such as reforestation or food processing,

subject to the protection of the Act. PCUN is concerned with its

members’ well being in non-agricultural work places. Further,

PCUN is concerned that an adverse ruling by this Court under

the NLRA could affect the available remedies under other anti-

retaliation statutes that apply directly to agricultural workers,

such as the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)

(1985), or the Migrant and Seasonal Agricultural Workers

Protection Act, 29 U.S.C. § 1855(a) (1983).

The Public Justice Center (PJC) is a non-profit civil rights

and anti-poverty legal services organization based in Baltimore,

Maryland. Since 1985, the PJC has used impact litigation,

legislative advocacy and public education to accomplish

systemic change for the underrepresented. The PJC has

represented low-wage immigrant workers in wage and hour

actions, and has a Latino Legal Assistance Project that seeks to

protect and expand the rights of Latinos in the State of Maryland.

The Washington Alliance for Immigrant and Refugee Justice

(WAIR)J) is an alliance of organizations and individuals working

collaboratively to advance the civil and human rights of

immigrants and refugees in Washington State. WAIRJ pursues

this mission by organizing and cultivating leadership in

immigrant and refugee communities throughout Washington

7

State. WAIRJ has supported union organizing campaigns led

predominantly by immigrant workers in a number of industries

in the state. WAIRJ has also documented the chilling effects of

INS raids and other enforcement activities on workers’ exercise

of their right to organize and assert their rights under

employment laws.

Together, amici have many decades of experience advising

and representing documented and undocumented immigrant

workers attempting to enforce their labor rights. We urge the

Court to affirm the decision of the District of Columbia Court

of Appeals in this case.

STATEMENT OF THE CASE

In the present case, José Castro filled out an employment

application and presented the required work authorization

documents at the time of his hire with Hoffman Plastic

Compound, Inc. In his responses on the application itself, he

indicated that he was not legally entitled to work in the United

States.

Mr. Castro was laid off during a campaign to organize a

union at Hoffman Plastic. The National Labor Relations Board

(NLRB) found that he was illegally laid off in retaliation for

union activities and awarded him back pay, which ran from the

time of the unlawful discharge until the time that his employer

elicited from him, in the course of NLRB proceedings, that

he was not legally authorized to work in the United States.

Hoffman Plastic Compounds, Inc., 320 N.L.R.B. 1060 (1998).

The employer now contends that it is not liable to Mr. Castro

for back pay for any period of time, despite its concession that

it acted illegally in Mr. Castro’s layoff.

SUMMARY OF ARGUMENT

In many workplaces in our country, undocumented

workers with a general knowledge that some in their workforce

lack authorization to be employed in this country. Others have

more specific knowledge that many in their workforce are

undocumented. In the worst cases, employers seek out

undocumented workers for the purpose of taking advantage of

them.

If employers are unconcerned about their employees’

immigration status at the time of hire, their interest in their

workers’ immigration status rises sharply when workers begin

to assert their labor and employment rights. Employers wishing

to defeat a labor organizing campaign or to deter employees

from pursuing employment rights use whatever tools are at hand.

These include sudden “discovery” that the workers are

unlawfully in the United States. Unscrupulous employers

threaten to bring in immigration authorities as a way of quelling

A legal system that denies undocumented workers back pay

creates a perverse incentive where it is a “reasonable” business

decision for an employer to retaliate against a union organizing

campaign or the filing of a sexual harassment claim by turning

all suspected undocumented immigrants in to the immigration

authorities. When undocumented victims of discrimination are

denied back pay as a remedy for retaliation, this unlawful strategy

carmies no cost to employers. Employers pay no penalty for their

unlawful conduct and are encouraged to continue the practice

with the next group of immigrant workers.

The Immigration and Nationality Act (INA) and the

NLRA share the goal of reducing employer incentive to take

advantage of a vulnerable workforce. An award of back pay to

undocumented workers deprives employers of the competitive

advantage they gain by first hiring, and then mistreating,

undocumented employees. It diminishes the attractiveness of

hiring undocumented immigrants, meeting the goals of the

Immigration Reform and Control Act (IRCA). It also diminishes

employer incentives to discharge or otherwise retaliate against

workers who wish to form a union or assert their labor rights,

9

meeting the goals of the NLRA and other labor-protective laws.

Only if this Court affirms the NLRB’s policy of providing limited

back pay to undocumented immigrants can the goals of these

statutes be met.

ARGUMENT

pulous Employers Use Threats of INS Raids to

’ porn cervanare aoa of Their Workplace Rights.

1. Employers in many industries hire undocumented

workers despite IRCA.

Because of their vulnerability and willingness to work hard

in difficult jobs at low wages without complaint, undocumented

workers offer significant advantages to hoa

IRCA’s employer sanctions provisions. Many -

industries rely on immigrant workers, both documented and

undocumented.

In the igrant states, three out of every four tailors,

cooks, and tetle workers are immigrants. Amajority of taxicab

drivers and service workers in homes are immigrants. Panel,

The New Americans: Economic, Demographic, and Fiscal

Effects of Immigration 215 (National Academy Press 1997).

Many of the workers in low-wage, dangerous jobs are

undocumented. In 1996 and 1997, INS inspections found that

23% of workers at Nebraska and lowa meatpacking plants had

questionable documents. An INS inspection of eighty-nine

construction businesses in Las Vegas found that 39% of workers

appeared to be unauthorized to work. Inspections of seventy-

four Los Angeles-area garment contractors found 41% of the

employees were unauthorized to work. General Accounting

Office, GAO/GGD-99-33, Illegal Aliens: Significant Obstacles

to Reducing Unauthorized Alien Employment Exist 6 (Apr.

1999). Righty-one percent of the agricultural workforce in the

United States is foreign-born, and at least half of the workforce

is not authorized to work in the United States. U.S. Department

10

of Labor, Research Rep. No. 8, Findings from the National

Agricultural Workers Survey 1997-98, 5, 22 (Mar. 2000).

In recent years, the number of undocumented immigrant

workers in the poultry industry has increased, prompting the

INS to deem it a major problem. See Lena H. Sun & Peter S.

Goodman, Poultry Firm to Help INS Monitor Workers, Wash.

Post, Oct. 23, 1998, at A18; David Griffith, Jones Minimal:

Low Wage Labor In the United States 157 (1993) (suggesting

that poultry employers had “developed a preference for those

most likely to be illegal aliens”).

Many of these same industries are known for frequent

violations of labor laws. In the poultry industry, following a

2000 survey of compliance with federal wage and hour laws,

the Department of Labor concluded that 100% of all poultry

processing plants were non-compliant with federal wage and

hour laws. U.S. Department of Labor, FY 2000 Poultry

Processing Compliance Report (2000). The violations

discovered by the Department included violations of the FLSA’s

hours of work, overtime, child labor, and record keeping

provisions, as well as non-compliance with the Family and

Medical Leave Act. Jd.

The U.S. Department of Labor has also found that two-

thirds of all garment-manufacturing businesses in New York

City can be characterized as “sweatshops.” The competition

between legal garment shops and illegal sweatshops has an

industry-wide effect of driving down wages of all garment

workers. See Labor Department: Close to Half of Garment

Contractors Violating FLSA, 1996 Daily Lab. Rep. (BNA) 87

2. Analysis of preliminary data from the 2000 Census indicates

that there are approximately 8 4 million undocumented immigrants in

the United States. Jeffrey S. Passel & Michael Fix, Testimony Prepared

for the Subcommittee on Immigration and Claims, Hearing on “The

U.S. Population and Immigration, ” Committee on the Judiciary, U.S.

House of Representatives (Aug. 2, 2001), available at <http://

www. house. gov/judiciary/passel_080201 .html>.

11

(May 6, 1996). Industries that employ large numbers of

undocumented workers are also among the worst violators of

labor and employment laws. A Department of Labor

investigation-based survey of compliance in agriculture, focused

on cucumbers, lettuce and onions, revealed that compliance with

FLSA and the Migrant and Seasonal Agricultural Worker

Protection Act in these commodities was “unacceptably low.”

U.S. Department of Labor, Compliance Highlights, 1, 3 (Nov.

1999). In suburban New York, where large numbers of

workers toil in landscape and small construction, restaurants,

domestic service and building cleaning ~ Aarne srr

u}ndocumented workers are the employees o in

Re and abuses run high.” Jennifer Gordon, We Make the

Road By Walking: Immigrant Workers, The Workplace Project,

and The Struggle For Social Change, 30 Harv. C.R.-C.L.

L. Rev. 407, 413 (1995).

In their consideration of IRCA, both houses of Congress

agreed that employers easily abuse undocumented workers. Each

house concluded that undocumented immigrants, “out of

desperation, will work in substandard conditions and for

starvation wages.” H.R. Rep. No. 99-682(I) at 47, 99th Cong.,

2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5662 (“Rep.

No. 99-682(I)”), cited in A.P.R.A. Fuel Oil Buyers Group, Inc.,

320 N.L.R.B. 408, 414 n.32 (1995), aff'd sub nom. NLRB v.

A.PR.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997).

Further, undocumented immigrants commonly will decline

to report private or official abuse and are frequently unwill:ng

to pursue civil claims in court. Linda Bosniak, Exclusion and

Membership: The Dual Identity of the Undocumented Worker

Under United States Law, 1988 Wis. L. Rev. 955, 986 (1998).

The lack of availability of safety-net programs such as

unemployment insurance, food stamps and welfare supplies

further reason for undocumented workers to suffer workplace

illegality without risking job separation. Jd. at 993-94.

12

In Dallas, the Regional Administrator of the Wage and Hour

Division of the U.S. Department of Labor indicates that illegal

immigrant workers endure sexual harassment, denial of overtime

pay and wages below the minimum federal standard because

they are worried they will be deported. L.M. Sixel, Aggressive

Stance Urged for EEOC/Witnesses Describe Abuse of

Immigrants, Houston Chron., June 23, 1999, available at 1999

WL 3997076.

Thus, employers who hire undocumented workers gain a

significant initial advantage of a workforce that is willing to

work hard, under poor conditions and for poor wages.

The workforce will, as well, suffer illegal conditions that

lawfully present workers would contest. Additionally, immigrant

workers have good reason to fear retaliation by their employers.

2. Retaliatory threats of INS raids are common when

workers seek to enforce rights under the NLRA.

Many employers hire immigrant workers with a generalized

knowledge that some in the workforce may be undocumented.

Others have very specific knowledge that particular workers

are undocumented. Still others seek out undocumented workers

for the very purpose of taking advantage of them.

Whatever the initial degree of an employer’s interest in a

worker's immigration status, that interest rises sharply when

workers begin to organize a union. In such cases, instances

of retaliatory threats or actual reports to the INS are common.

As shown below, the temptation to engage in this form of

retaliation is overwhelming, given that it has no cost ‘9 the

employer.

The NLRA expresses our national policy that all workers

be free to exercise their right to organize and bargain collectively

through representatives they choose, without interference or

retaliation by their employers. 29 U.S.C. § 151 (1994). The law

who exercise these protected rights. Employers may not directly

13

retaliate by threatening to fire or firing workers. Nor may they

use the INS to retaliate indirectly. Sure-Tan, Inc. v. NLRB, 467

U.S. 883 (1984). The protections of the law extend to all

employees, regardless of their immigration status at the time

the work was performed. Jd. at 895.

In spite of the protections in labor and immigration laws,

undocumented workers are extremely vulnerable to anti-union

pressure from employers. An employer who is adamantly

opposed to recognizing a union may discharge immigrant union

supporters or threaten to turn workers over to the INS if they

seek to organize themselves into a union. Unfortunately, threats

and actual retaliation against undocumented immigrants are a

common occurrence for immigrant workers and their U.S.

citizen co-workers.

Sure-Tan itself is the best-known example of this retaliation.

There, five of seven eligible voters in a successful union election

were undocumented. The employer knew of the workers’

undocumented status at least several months prior to the union

election. Two hours after the workers voted in favor of union

representation, and cursing the workers for having voted for

the union, the employer questioned them about their immigration

status. He then turned the workers over to the INS. Sure-Tan,

467 U.S. at 886-87.

While Sure-Tan may be the most well known example of

employer retaliation, it is not a unique one. The scenario of

employer retaliation and misuse of the immigration laws

presented in Sure-Tan has been repeated across the country, in

many industries:

Victor Benavides began working as a boiler mechanic in

1990. Before he was hired, the president of the corporation

personally interviewed Mr. Benavides. Mr. Benavides told the

president that he was working unlawfully in the United States.

The president responded that he needed only a “legal” name so

that Benavides could be listed on the company’s books. Several

14

months later, when Benavides and another undocumented

worker, Alberto Guzman, became active in a union organizing

drive, and in an atmosphere of “flagrant and pervasive unfair

labor practices,” the workers were fired. One day after the union

won the election, the employer asked the INS to investigate the

legal status of its employees. The Board found in favor of the

employees and made a limited back pay award to Benavides

and Guzman. A.P.R.A. Fuel Oil Buyers Group, Inc., 320

N.L.R.B. 408, 409, 415 (1995), aff'd sub nom. NLRB v. A.P-R.A.

Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997).

Rodrigo Romero is a native of Belize. He worked in the

warehouse of a Los Angeles department store for seven years.

His employer knew of his undocumented status, and had, in

fact, referred him to an immigration lawyer to gain legal

residency. During an organizing campaign, he was pressured to

vote against the union and reminded of his tenuous status.

Romero voted in favor of union representation at the plant. The

next day, he was fired, ostensibly because of his undocumented

status. Nancy Cleeland, Unionizing is Catch 22 for Illegal

Immigrants’ Jobs: Undocumented Status Makes Them

Vulnerable to Workplace Retaliation, L.A. Times, Jan. 16, 2000,

available at 2000 WL 2201447.

In 1999, workers at a Holiday Inn Express hotel in

Minneapolis voted to join the Hotel Employees and Restaurant

Employees union. A call to the INS by the employer resulted in

the arrest of eight members of the union’s negotiating committee.

T. Alexander Aleinikoff, I/legal Employers, Am. Prospect, Dec.

4, 2000.

In 1996, the Teamsters’ and United Farm Workers’ unions

began a joint organizing drive in Washington State’s lucrative

apple industry, beginning with a packing company in Wenatchee,

Washington. One employee, Mary Mendez, quotes the

employer’s anti-union consultant as having told the workers:

“there hasn’t been a union here yet, and the INS hasn’t done

any raids. But with a union, the INS is going to be around.” The

———

15

union lost the subsequent election, but the NLRB issued a

bargaining order because of the company’s many illegal actions.

Devid Bacon, Immigration Law — Bringing Back Sweatshop

Conditions, Nov. 10, 1998, available at <http://www. igc.org/

dbacon/Imgrants/11sanctn.html> (documenting similar

employer abuses in a maintenance company in the Silicon Valley

of California, a knitting company on Long Island, and a video

company in San Leandro, California).

In 1994, workers in a Chicago Italian restaurant sought to

join a union. At an employee meeting, the general manager told

the workers that the INS could visit the restaurant. 6 West Ltd.

Corp. v. NLRB, 237 F.3d 767, 772 n.7 (7th Cir. 2001).

Aida Naranjo was hired in 1985 to work for a Brooklyn

textile manufacturer. In 1991, after voting for union

representation from the International Ladies Garment Workers

Union, she was laid off. The Board found that the rights of Ms.

Naranjo and other workers were violated when the employer

made implicit threats, shortly after the union election, to report

all of them to the INS in retaliation for their support of the union.

Impressive Textiles, 317 N.L.R.B. 8 (1995).

In Impact Industries, Inc., 285 N.L.R.B. 5 (1987),

remanded, 293 N.L.R.B. 794 (1989), an Illinois aluminum and

zinc die casting manufacturer contacted the INS after being

informed that 99% of the Mexican immigrants in his employ

the union. He secured interviews of each employee

by the INS, spreading fear among the workers. In its finding of

a pervasive anti-union climate, the Board said that the employer

“viewed the INS program as a handy convenient way to nd

itself of a bloc of union-supporting employees.” Jd. at 37.

udio Quijada worked as a janitor for a building

scsintmance compeny in White Paian, Now Yor He contacted

the Service Employees International Union in October 1989 to

organize the workforce. About a week later, when he went to

pick up his check, a company manager told him that if he did

not withdraw his support for the union, he would be reported to

16

the Immigration Service. The employer threatened to report

another employee to INS because her brother refused to give

false testimony at the employer’s behest. The Board found in

favor of the employees. Accent Maintenance Corp., 303

N.L.R.B. 294, 296 (1991).

Emme Loy was involved in an organizing drive at a bakery

in Brooklyn in 1988. His employer threatened to close the bakery

and tear up any union cards given to him. Further, he informed

the workers that the union was “not for illegals.” Breakfast

Productions, Inc., 293 N.L.R.B. 607, 609 (1989).

Similar examples abound, both before and after the passage

of IRCA. In 1977, Hilda Niz worked at a California tire company.

She complained to the company general manager that her son,

who also worked there, had not received overtime pay due him.

In response, the manager said that if Ms. Niz complained to the

Department of Labor, he would have her killed. When Ms. Niz

complained, along wich six other employees, six workers were

laid off. Later, the employer claimed that since some of the

workers were undocumented, it was not liable for back pay.

NLRB v. Apollo Tire Co., 604 F.2d 1180, 1181-82 (9th Cir. 1979).

In Chicago in 1982, immigrant workers at a tortilla factory

began an organizing drive. Among many other retaliatory acts,

the employer instituted a policy that workers would not be

allowed to collect their paychecks unless two forms of

identification, such as a birth certificate, social security card or

immigration document, were shown. In the course of

interrogating an employee about her union sympathies, a

manager showed the employee a newspaper article about INS

arrests of workers during a union organizing drive, and stated

that the employer, too, could call INS. The Board found the

employer threats to report workers to the INS to be unlawful

retaliation and issued a bargaining order on the basis of the

numerous acts of retaliation. De/ Rey Tortilleria, Inc., 272

N.L.R.B. 1106, 1112 (1984), order enforced by N.L.R.B. v. Del

Rey Tortilleria, 823 F.2d 1125 (7th Cir. 1987).

' 17

In 1975, employees at a shipbuilding plant on Long Island

decided to join a union. The shipbuilder threatened to have one

of the workers, Juan Figueroa, a native of Guatemala, deported

if he testified against the employer at an NLRB hearing. NLRB

v. John Dory Boat Works, Inc., 229 N.L.R.B. 844, 852 (1977).

See also Corrugated Partitions West, Inc., 275 N.L.R.B. 894,

897 (1985) (California manufacturer repeatedly threatened to

call INS on workers who supported the union); Sun Country

Citrus, Inc., 268 N.L.R.B. 700, 708 (1984) (Arizona employer

violated Section 8(a)(1) of the NLRA by telling workers that

immigration papers would be required to vote in union election);

Caffe Giovanni, Inc., 259 N.L.R.B. 233, 235, 237 (1981)

(restaurant made at least two specific threats to induce action

by the INS against workers engaged in union activities);

Futuramik Industries, Inc., 279 N.L.R.B. 185, 185 n.3 (1986)

(employer threatened at least 10-20 workers either on election

day or shortly before with INS enforcement if they voted for

union representation); Hasa Chemical, Inc., 235 N.L.R.B. 903,

905 (1978) (employer’s president said that ifhe lost the election

hearing he was going to call the INS and have all the “illegal

aliens” hauled off); Viracon, Inc., 256 N.L.R.B. 245, 246 (1981)

(where an Illinois employer threatened to report undocumented

workers to INS if union won election, the Board said: “Like the

fears of job loss discussed above, fears of possible trouble with

the Immigration Service or even of deportation must remain

indelibly etched in the minds of any who would be affected by

such actions on Respondent’s part.”’).

Just in the last several months, the NLRB has ruled in two

cases involving employer misuse of its knowledge of workers’

unlawful status. In October 2001, a California waste company

was found to have committed an unfair labor practice by

contacting the INS a few days after a union representation

election and telling eleven union supporters they could not

The Board held that the employer’s immigration status inquiry

18

was a “smokescreen” for unlawful discharges. Nortech Waste,

336 N.L.R.B. 79 (2001).

In August 2001, the Board overruled a Chicago employer’s

objections to a unjon election. The employer told the Board

that some of the workers who voted in the election were

undocumented. It offered as proof letters from the Social

Security Administration indicating that some of the workers had

invalid social security numbers. However, the Board pointed

out that the employer had received letters from the Social

Security Administration as far back as May 1999, and had not

raised any questions about immigration status until after the

union election in February 2001. Superior Truss & Panel, Inc.,

334 N.L.R.B. 115 (2001).

The above examples mainly involve written decisions by

courts and by the NLRB. Many more complaints are made yearly

that do not result in Board findings. Officials of the NLRB

estimate that as many as forty-five complaints are filed yearly

involving threats of deportation in the city of New York alone.

Thomas Maier, Workers Often Subject to Scare Tactics,

Newsday, Jul. 26, 2001. The secretary-treasurer of the Hotel

Employees and Restaurant Employees’ union, involved in the

Holiday Inn Express case outlined above, says that immigration

status “has come up in every single organizing campaign we’ve

had in the last three years. In a number of our hotels, we have

lost entire departments. And it really has a chilling effect on an

organizing drive. People understand very clearly that if you are

involved in trying to bring in a union, you put your job in

jeopardy.” Cleeland, supra.

19

3. Employer retaliation is also common when workers

seek to enforce wage and hour, discrimination,

health and safety, and other employment rights.

As noted above, employers use threats of INS raids as tools

to maintain a non-unionized labor force. In addition, workers

who seek to be paid minimum wage or overtime pay, have

healthful work environments, or to be protected against sex

discrimination or sexual harassment at work are also vulnerable

to this form of abuse. The Court’s back pay decision in the

present case may affect employer retaliation and worker

remedies under a host of other labor and empluyment laws.

Silvia Contreras worked as a secretary for a company that

sells commercial insurance to truck drivers. In 1997, after Ms.

Contreras filed a claim for unpaid wages and overtime under

the FLSA, her employer turned her in to the INS. A court later

awarded her back pay under FLSA. Contreras v. Corinthian

Vigor Ins. Brokerage Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998).

In United States v. Alzanki, 54 F.3d 994, 999 (1st Cir. 1995),

cert. denied, 516 U.S. 1111 (1996), an employer confined her

immigrant employee to the apartment, forced her to work fifteen

hour days, exposed her to noxious cleaning chemicals, and

refused to provide medical treatment when the chemicals caused

her illness. The employer threatened her with deportation almost

daily. He was later convicted of holding her in involuntary

servitude.

In Urrea v. New England Tea & Coffee Co., 2000 WL

1483215 (Mass. Super. 2000) an employer knew of a

female employee’s undocumented status and did nothing

to contest it until she filed a complaint alleging sex harassment.

The employer then aggressively attempted to uncover her

immigration status during discovery in order to stop the

prosecution of her case.

In Gilbert, Arizona, female employees at Quality Art LLC,

a picture frame manufacturing company, accused their employer

20

of offensive and intrusive searches, as well as other harassment

on the basis of sex, such as being assigned to sex-segregated

positions. The employer retaliated by terminating some

employees, forced some workers to quit their jobs based on the

hostile work environment, and reported the women to the INS.

Although INS officials said that they sympathized with the

women — calling them “courageous” for coming forward —

INS indicated that the women likely would be returned to their

countries. Yochi J. Dreazen & Rudy Kleysteuber, A/legations

of Sexual Harassment in Arizona Put Immigration Service and

EEOC at Odds, Wall St. J., Aug. 22, 2000, available at 2000

WL-WSJ 3040954.

Foreign garment workers from China sued their employers

in Saipan under the FLSA using fictitious names because the

recruiters and employers had threatened them with physical

assault and other extreme forms of retaliation. The workers were

required to surrender their passports upon hire, and were told

by their employers that their families in China would be arrested,

physically assaulted, and/or fined if the workers complained of

unfair working conditions in the garment plants in Saipan. Does

I through XXIII v. Advanced Textile, 214 F.3d 1058, 1065 (9th

Cir. 2000).

Seven employees at a Staten Island iaundry plant filed a

complaint with the New York State Labor Department, charging

that their employer owed them $159,000 in back wages. Five

days later, the INS raided the workplace, under circumstances

indicating that the employer had reported the workers. Matthew

Strozier, Immigrant Groups Call for End to Workplace Raids,

India Abroad, Oct. 23, 1998, available at 1998 WL 11376904.

Rajni Patel worked as a janitor and maintenance person for

a Quality Inn in Birmingham, Alabama. When he brought suit

against his employer for unpaid minimum wages and overtime,

the employer claimed that it was not obligated to pay unpaid

minimum wages or liquidated damages to undocumented

workers. Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.

21

1988). The employer had known of Patel’s undocumented

status all along: in the lower court, the employer claimed that it

brought Patel to the motel in order to “hide” him from the INS.

See Patel v. Quality Inn South, 660 F. Supp. 1528 (N.D. Ala.

1987).

An undocumented farmworker on a California ranch

worked for three years for less than the minimum wage.

He joined with thirteen other workers in a lawsuit to recover

wages owed them. The employer reported all of the plaintiffs to

the INS. Fuentes v. INS, 765 F.2d 886, 887 (9th Cir. 1985),

vacated as moot, 844 F.2d 699, 700 (9th Cir. 1988).

Most recently in New York City, retail grocery and pharmacy

chains hired labor contractors who recruited and hired delivery

workers from among an almost exclusively undocumented West

African community. After working 80 hour weeks for as

little as $2 an hour, the workers filed a claim under the FLSA.

The labor contractors knew the workers were undocumented

and had not demanded proof of work authorization at the time

of hire. However, later they began gathering copies of worker

passports and visas in order to intimidate and harass complaining

workers. A federal district court judge granted the delivery

workers a protective order and a temporary restraining order

prohibiting the employers from retaliating against them by

turning them in to the INS. Ansoumana v. Gristede s, No. 00-

0253 (S.D.N.Y. filed Jan. 13, 2000) <http://www.nelp.org/

litig 10.pdf>,<http://www.nelp. org/litig9. pdf.

B. Without Back Pay As a Deterrent, Employer Incentive

to Hire and Abuse Undocumented Workers is High.

1. Employer sanctions provide no deterrent to

employers who would retaliate.

As noted above, employer hiring of undocumented

immigrants and use of immigration status as a club to defeat

labor and employment claims continue unabated after IRCA.

Employers have little reason to fear that INS will sanction them

22

for hiring undocumented immigrants, and so are free to retaliate.

In fact, employers who would abuse the law can use the employer

sanction system to their advantage.

The language of the verification requirements provides

employers with a “gaping loophole” that they exploit by hiring

aliens whom they know have presented fraudulent documents.

William J. Murphy, Note, Jmmigration ®-form Without Control:

The Need for an Integrated Immigration-Labor Policy, 17

Suffolk Transnat’! L. Rev. 165, 177-78 (1994). Under IRCA,

employers are only required to accept documents that appear

on their face to be genuine and to relate to the individual named.

8 U.S.C. § 1324a(b)(1)(A) (1994). This has meant that an

employer can ignore documents it suspects are invalid, allow

the worker to use documents that belong to another person, or

even take part in procuring documents for the worker.’ For

example, as in the case of Victor Benavides, the employer can

simply request that the worker supply him with “legal”

documents. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B.

at 409. '

3. In a rare occurrence, a federal grand jury indicted a Nebraska

company as defendants in a conspiracy to smuggle undocumented workers

for jobs in a beef packing plant, the result of a 14-month investigation

that culminated in a raid in 2000. Margery Beck, INS Adds Nebraska

Beef to Worker Smuggling case, Lincoin Journal Star, Nov. 17, 2001, at SB.

The workers, who had been recruited from Mexico by management,

were promised well-paying jobs at the meat packing plant. Instead,

the workers found themselves toiling in terrible working conditirns at

the plant, and many were not paid any of their wages. Over 200 workers

were detained and deported by the INS, in the midst of a several-

months long organizing drive. Deborah Alexander, Nebraska Beef Faces

Federal Indictments, Omaha World-Herald, Dec. 7, 2000, at 6B.

Executives of a contract labor firm were recently sentenced on

charges that they recruited workers who were known to be in the U.S.

illegally, and used classes in asbestos abatement for this purpose.

According to the Justice Department, instructors told immigrant workers

to evade INS by throwing asbestos at officers before running away.

Safety and Health: Three Sentenced in Scheme to Hire Undocumented

Workers to Remove Asbestos, 176 Daily Lab. Rep. (BNA) A-8 (2001).

—S

23

In the present case, there is at least some indication that the

employer knew that Mr. Castro was illegally in the country at

the time of hire: on his initial employment application, Castro

answered “yes” to the question, “Are you prevented from

lawfully becoming employed in this country because of Visa

[sic] or Immigration Status [sic]?” See Hoffman Plastic

Compounds, Inc., 326 N.L.R.B. 1060 n.10.

er tir Set tee

but acquires a powerful club to use against att

to assert their rights: “In effect, employers who are willing to

comply just enough to avoid appearing to disregard the law

totally, but who in fact continue to rely on undocumented labor,

are insulated from the law’s sanctions provisions.” Bosniak,

Exclusion and Membership, at 1017.

In early studies of employer compliance with IRCA, many

admitted to researchers that they accept counterfeit documents

“with a wink.” Cecelia M. Espenoza, The Illusory Provisions

of Sanctions: The Immigration Reform and Control Act of 1986,

8 Geo. Immigr. L.J. 343, 375 n.273 (1994).

Even where employers fail utterly to comply with the law,

average employer sanctions fines are low and rarely assessed.

INS has shifted the focus of its enforcement efforts away from

the workplace and towards border enforcement. In fiscal year

1999, the INS apprehended 1,714,035 aliens. Of this number,

the Border Patrol made 1,579,010 apprehensions, of which 97%

were made along the southwest border. LN.S., /999 Statistical

Yearbook of the Immigration and Naturalization Service 4,

available at <http://www.ins.gov/graphics/aboutins/statistics/

enf99text.pdf>.

By contrast, the number of warnings to employers

nationwide was 383, down 40% from 1998. The INS issued

only 417 notices of intent to fine employers, na*ionwide, in 1999,

a decrease of 59%. Id. at 5. Between 1989 and 1993, the average

employer fine under the employer sanctions provisions was only

24

$292. Louis Freedberg, INS to Crack Down on Employers, S.F.

Chron., Feb. 18, 1994, at 2.

Because of the provisions of the law and the focus of INS

enforcement efforts, employers have little to fear from sanctions.

The risk of sanctions being levied is, in fact, so low that sanctions

amount to a cost of doing business, a “reasonable expense, more

than offset by savings of employing undocumented immigrants

in the first place or by the perceived benefits of union

avoidance.” A.P.R.A. Fuel Oil Buyers Group, 320 N.L.R.B. at

415.

Workers, on the other hand, have much to fear from

employers. Employer retaliation against workers has reached a

degree such that even the INS recently admitted that the only

workers at risk of deportation for unauthorized employment are

those reported by the employer in retaliation for protected

organizing activities or “that kind of stuff.” Lori A. Nessel,

Undocumented Immigrants in the Workplace: the Fallacy of

Labor Protection and the Need for Reform, 36 Harv. C.R.-C.L.

L. Rev. 345, 359-362 (2001).

2. In a scheme without back pay, retaliation imposes

no cost on employers.

Employers gain significant economic advantages by hiring

undocumented workers. They have little to fear in the way of

workers. Employers who choose to retaliate against workers

who exercise their labor rights would also find, in the absence

of a back pay remedy, that this is a “no-cost” strategy.

Back pay performs two functions in the NLRB

administrative scheme: it is intended to remedy the consequences

of an unfair labor practice, and to deter further violations.

Consolidated Edison v. NLRB, 305 U.S. 197 (1938). Back pay

compensates victims of unfair practices by making them whole

for the losses suffered on account of the unfair labor practice.

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1940).

25

Moreover, it deprives employers of the competitive advantage

they secure by acting unlawfully.

Absent back pay awards to oe ted dover of

discrimination, an employer who would not have a union

at its workplace, or who wishes to retaliate against a worker

making a minimum wage or sexual harassment claim, has a

incentive to retaliate. Employers know that they are in

little danger of sanction for lack of compliance with the law.

On the other hand, a “tip” to the INS or threat to a workforce

will rid the employer of the union. Finally, in jurisdictions where

no back pay is awarded to undocumented immigrants, there 1s

no cost to an employer who would violate the law. In such a

case, threats to turn immigrant workers in to the INS perversely

become a “reasonable” business decision.

For workers, the absence of back pay means the

undocumented worker is put in a position worse than he would

have held had he never made a complaint. That is, he is without

a job, and without compensation for a job illegally taken from

him. It is little wonder, therefore, that workers do not complain

about illegal acts.

3. If left unremedied, employer retaliation against

undocumented workers chills all workers’ rights.

As this Court has previously recognized: “[A]cceptance by

illegal aliens of jobs on substandard terms as to wages and

working conditions can seriously depress wage scales and

working conditions of citizens and legally admitted aliens; and

employment of illegal aliens under such conditions can diminish

the effectiveness of labor unions.” DeCanas v. Bica, 424 US.

351, 356-57 (1976).

The impact of employers’ unlawful conduct is felt not only

by undocumented workers themselves, but by their co-workers

as well. Documented workers and U.S. citizens may be reluctant

to organize their workplaces because threats to turn workers

over to the INS, properly timed, can undermine the election

26

process. Deportation of their undocumented co-workers will

dilute the power of their bargaining unit, if it survives a union

election.

Further, employers’ violations of the NLRA, and other laws,

may never come to light because of undocumented workers’

fears of exposure. Such a result does damage to the retaliation

protections in the laws and the entire remedial scheme. As this

Court has said in another context, employee complaints “may

disclose patterns of noncompliance resulting from a

misappreciation of the Act’s operation or entrenched resistance

to its commands, either of which can be of industry-wide

significance. The efficacy of its enforcement mechanisms

becomes one measure of the success of the Act.” McKennon v.

Nashville Banner Publishing Co., 513 U.S. 352, 359 (1995).

Complete freedom to make complaints without fear of retaliation

is necessary “to prevent the Board’s channels of information

from being dried up by employer intimidation of prospective

complainants and witnesses.” John Hancock Mut. Life Ins. Co.

v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951).

The inability of undocumented workers to make complaints

and secure effective remedies takes on added significance in a

system that relies on complaints. The NLRB has no authority to

conduct investigations on its own. “[I]mplementation is

dependent ‘upon the initiative of individual persons.’ ” Nash v.

Florida Indus. Comm'n, 389 U.S. 235, 238 (1967). Thus, when

workers, fearing retaliation, fail to make complaints,

unscrupulous employers profit. Both documented and

undocumented workers suffer. In addition, the efficacy of the

NLRA is undermined.

27

CONCLUSION

Congress passed the employer sanctions provisions of the

Immigration Reform and Control Act as part of its strategy to

“remove the economic incentive which draws [undocumented]

aliens to the United States as well as the incentive for employers

to exploit this source of labor.” H.R. Rep. No. 99-682(I),

reprinted in 1986 U.S.C.C.A.N. 5649, 5656. Thus, Congress

intended that enforcement of NLRA provisions would support

the IRCA’s purpose of reducing illegal immigration by focusing

on the employer’s unlawful actions. Back pay remedies, to the

extent they “depriv[e] employers of any competitive advantage

they may have secured by acting unlawfully,” complement the

purpose of the IRCA to protect U.S. labor markets from the

effects of illegal immigration. NLRB v. A.P.R.A. Buyers Group,

Inc., 134 F.3d at 55.

One observer has posed the question before the Court as

one of incentives. Which of the two is more likely to take

advantage of the system: Employers, in a system where

undocumented workers who suffer illegal discrimination can

receive no remedy? Or employees, in a system where

undocumented workers may collect back pay for a reasonable

time following anti-union discrimination? John L. Mcintyre,

What Does “Lawfully Entitled to be Present and Employed

Mean to You?: Undocumented Workers & Make-Whole

Remedies under the NLRA, 22 U. Haw. L. Rev. 737, 762 (2000).

That question is answered by the dissent of Judge Cudahy

in Del Rey Tortilleria v. N.L.R.B., the only circuit court decision

denying compensatory damages to undocumented employees

suffering violations of their labor rights by their employees:

Illegal aliens do not come to this country to gain the

protection of our labor laws. They come here for

jobs. They can find jobs because they are often

willing to work hard in rotten conditions for little

money . .. When we deny back pay to illegal aliens,

we tell employers to hire more of them; for aliens

28

who cannot claim monetary damages for unfair labor

practices are less expensive to hire and less trouble

than their native counterparts.

Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1125 (7th Cir.

1992) (Cudahy, J., dissenting).

The Board’s remedy of limited back pay to undocumented

victims of discrimination is the only countervailing force

weighing against the incentive and economic advantage outlined

in this brief. If the complementary policies of the NLRA and

IRCA are to be given effect, this Court must endorse this remedy

so that employers will know that the practice of threatening

their workers with deportation has monetary consequences.

Limited back pay such as that afforded Mr. Castro in this case

also inform undocumented workers that U.S. labor laws protect

them, not only on paper, but in reality.

Amici respectfully urge the Court to affirm the decision of

the District of Columbia Circuit in this case.

Respectfully submitted,

JAMES REIF

Counsel of Record

GLADSTEIN, Reir & MEGINNISS

817 Broadway, Sixth Floor

New York, NY 10003

(212) 228-9160

JAMES WILLIAMS

CATHERINE K. RUCKELSHAUS

NATIONAL EMPLOYMENT

Law Proyect, Inc.

55 John Street, Seventh Floor

New York, NY 10038

(212) 285-3025

=-_ —_— - —-—

29

REBECCA SMITH

NATIONAL EMPLOYMENT

Law Prosect, INc.

407 Adams Street, SE, Suite 203

Olympia, WA 98501

(360) 534-9160

Leticia SAUCEDO

JosEPH BERRA

MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND

140 East Houston Street

San Antonio, TX 78205

(210) 224-5476

Attorneys for Amici Curiae