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A Wink and a Nod:

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20On March 27, 2002, the United States Supreme Courtheld that undocumented immigrants improperly dis-charged by U.S. employers for union organizing activ-ities are not entitled to back pay. The case, Hoffman Plastic Com-pounds, Inc. v. NLRB(Hoffman), has generated widespreadconcern—both domestically and internationally—amongworkers and advocates who worry that Hoffman represents asubstantial reduction in labor rights for workers. Advocatesfear the decision creates a chilling effect on reports ofemployer abuse by undocumented workers in the UnitedStates and curbs freedom of association for all U.S. workers.Beyond U.S. borders, the decision violates internationalhuman rights norms; the United States, by denying employ-ment protections to undocumented workers, discriminatesagainst them based on their immigration status.Workers’ Rights within the Human Rights FrameworkThe right of workers to form a union is protected as anaspect of the freedom of association contained in a numberof international human rights instruments. While contem-porary slavery and abusive child labor are examples of severeviolations of the rights of workers that shock the conscience,the human rights of workers are also threatened when employ-ers seek to quash union-organizing activities through tacticssuch as intimidating or discharging union supporters. TheUnited Nations Universal Declaration of Human Rights of1948 (UDHR), in Article 23(1) and (4) respectively, pro-claims that “everyone has the right to work,” and “everyonehas the right to form and to join trade unions for the pro-tection of his interests.” Fifty years after the adoption of theUDHR, the International Labor Organization (ILO) notedthe relationship between the protection of workers’ rights andthe full achievement of human potential in its Declaration ofFundamental Rights and Principles at Work of 1998. To thatend, this Declaration set forth four core workers’ rights prin-ciples, the first of which is freedom of association (the rightto organize and join trade unions) and the effective recog-nition of the right to collective bargaining (the right of work-ers to seek improvements in their working conditions as agroup rather than individually). Other principles of this Dec-laration include the elimination of forced labor, child labor,and employment discrimination.The National Labor Relations ActAdministered by the National Labor Relations Board(NLRB), the National Labor Relations Act (NLRA) regu-lates the labor-management relationship for many employeesand companies in the United States and provides most pri-vate sector employees the right to organize, bargain collec-tively, and engage in peaceful strikes and picketing. TheNLRA also prohibits unfair labor practices, which may resultfrom either employer or employee action, such as employerdiscrimination against employees for union organizing activ-ities and employee secondary boycotts. One of the NLRB’smain functions is to review allegations of unfair labor prac-tices and institute remedial measures available under theNLRA. These remedial measures include posting notices ofunfair labor practices at worksites, obtaining employer com-mitments not to violate the NLRA in the future, reinstatingunlawfully discharged employees, and distributing back payto such employees. No private rights of action are permittedunder the NLRA, and no fines or other penalties are leviedagainst employers committing unfair labor practices.Back pay, under the NLRA, is monetary compensation,including interest, for the wages not earned by a workerbecause of the employer’s unfair labor practice violation. Inmost cases, reinstatement with back pay is the remedy foremployee complaints of being discharged for pro-unionactivities. If the worker takes another job between the date ofthe unlawful discharge and the NLRB’s decision, the earnedwages are deducted from the amount the violating employermust pay. This limit to the back pay remedy illustrates that thepurpose of the NLRA is not to punish employers, but torestore employees to their status before the unfair laborpractice occurred. The NLRB awards back pay to approxi-mately 20,000 workers each year. Shortcomings of the NLRACritics of the NLRA remark on the inadequacy of theremedial system. Many employers consider remedies likeback pay for workers to be routine business costs that are worththe expense to suppress union activities. Orders to post writ-ten notices of violations and “cease and desist” orders are like-wise not taken seriously by employers, because they carry noeconomic consequences. Furthermore, supervisors and man-agers, independent contractors, employees of certain smallbusinesses, domestic service workers, agricultural workers, andpublic-sector employees are exempt from protection underthe NLRA. Although other federal, state, or local statutes maycover these workers, the U.S. government estimates that asmany as one-quarter of U.S. workers—32 million individuals—lack collective bargaining rights under any federal or statestatute. The Supreme Court’s recent decision in Hoffman may sig-nificantly limit undocumented workers’ rights under analready insufficient NLRA. The Court’s decision may also leadto a reduction of undocumented workers’ rights under otherlabor laws, through a broad application of Hoffman by thecourts or through a chilling effect directly caused by thecase. In a broader sense, the decision calls into question thecommitment of the United States to promoting freedom ofassociation and preventing employment discrimination. Hoffman Plastic Compounds, Inc. v. NLRB In January 1992, the NLRB found that Hoffman PlasticCompounds, Inc. illegally discharged several employees,including an undocumented worker from Mexico, becausethe employees were union supporters. In its decision, theNLRB reasoned that the most effective way to further U.S.immigration policies would be to provide the protectionsand remedies of the NLRA to undocumented workers whoseemployers commit unfair labor practices. The Supreme Court’s decision in Hoffman reversed theNLRB, 5-4, reasoning that the NLRB decision underminedfederal statutes and policies outside the scope of the NLRA.The Court found the NLRB’s prescribed remedy inconsistentA Wink and a Nod: The Hoffman Case and Its Effects onFreedom of Association for Undocumented Workersby Jill Borak*continued on next page21with the Immigration Reform and Control Act (IRCA), whichprohibits employees


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