California growers are urging the state's Agricultural Labor Relations Board to take action that could effectively gut the state's farm labor law and encourage growers to employ more illegal aliens than ever before.
The growers want California to follow last summer's U.S. Supreme Court ruling that an illegal alien who is fired for supporting a union cannot collect back pay or win reinstatement. Because the workers aren't legally entitled to be here in the first place, the high court ruled, they must be "deemed unavailable for work."
In other words, even though federal law makes it illegal for an employer to fire a worker for joining a union, employers can violate the law without serious penalties as long as the target of the action is an illegal alien.
Adopted Own Law in 1975
The implications of the decision are invidious and far-reaching.
The state's farm labor board does not feel bound by the Supreme Court ruling because federal labor law excludes farm workers; in 1975 the state adopted its own law for labor issues affecting farm workers.
But, if the state board follows the lead of the Supreme Court with a similar interpretation of California law, illegal aliens could no longer be effectively protected from abuses by growers.
It is estimated that at least 70% of the state's farm workers are here illegally. Thus, only the remaining 30% of farm workers would be protected by the state labor law if it is revised in accordance with the high court's ruling. The law would be rendered ineffective because union formation would become extremely difficult. Union formation, after all, requires approval of a majority of workers.
Also, while growers deny it, they will no doubt be tempted to hire even more illegal aliens if they know that these workers can be fired or otherwise punished for supporting a union.
Contempt of Court Threat
Marion Quesenbery, attorney for the Western Growers Council, said such a temptation to growers could be limited if the courts issue a cease-and-desist order that would prevent growers from firing illegal aliens for supporting a union. In that way, growers could be punished for contempt of court even though they could not be forced to reinstate the workers or give them back pay.
But enforcement of a cease-and-desist court order is a lengthy process and would not directly help fired workers. As a result, even with such an order, it is unlikely that illegal aliens would feel free to defy their bosses' threats to fire them if they support a union.
The new legal incentive for employers to hire illegal aliens comes as a record number of job-hungry foreign workers enter this country illegally to compete for jobs with domestic workers.
In the past fiscal year, U.S. Border Patrol apprehensions of illegal aliens were 30% higher than the record 1 million illegals taken in the previous year, and far more illegals slip past the border undetected than are caught.
Linda Wong, a lawyer with the Mexican-American Legal Defense and Education Fund, estimates that 70% or more of California's 250,000 to 350,000 farm workers are illegal aliens. There are an estimated 1 million illegal aliens working in the state, according to the federal Immigration and Naturalization Service.
Until the Supreme Court ruling, the National Labor Relations Board had been ordering employers to reinstate even illegal aliens to their jobs and to give them back pay if they were treated illegally.
California's state farm labor law incorporated the same policy. Since the law was enacted 10 years ago, an estimated 6,000 farm workers, including illegals, have collected nearly $5 million in back wages. Most were reinstated to their jobs as a result of orders from the state farm labor board.
Case Began in 1976
The U.S. Supreme Court decision that could change all that involved eight illegal aliens who had been employed by Sure-Tan, a small Chicago leather company.
The case began in 1976 when the illegals signed cards saying they wanted to be represented by the Leather Workers Local 431.
The company president, John Surak, admitted that he knew that almost all of his employees were in this country illegally. But he was happy paying them relatively low wages and did nothing about their illegal status until the union won a representation election.
Then Surak hit back. He quickly dispatched a letter to the Immigration and Naturalization Service informing the agency of his workers' illegal status and urging that they be arrested.
Federal immigration agents complied, and the workers agreed to go back on their own to their native Mexico as a substitute for forced deportation.
The Supreme Court said the workers were, indeed, entitled to the protection of federal labor law and it even deplored Surak's letter to the INS. The court said the company had committed an unfair labor practice by calling on INS authorities to arrest the aliens because they supported the union.