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Rule on Alien Worker Rights to Be Dropped

September 09, 1986|HENRY WEINSTEIN | Times Labor Writer

The Agricultural Labor Relations Board on Monday said it will reverse a major decision it issued last October that gave undocumented alien workers in California the right to secure back pay and reinstatement if they were improperly fired.

The board acted on its own volition rather than waiting for a new case on the issue to be filed--an unusual move. But the board's action did not come as a surprise.

Since its 1985 decision, the ALRB's composition has changed from a 3-2 liberal majority to a 3-2 conservative majority, as a result of appointments to the board by Gov. George Deukmejian. And representatives on both sides of the controversy said Monday's action is a sign of the change in the board's political tenor.

The proposed action would rescind the 1985 decision that conferred job protection against improper firings to undocumented alien workers, who compose 50% to 70% of the state's about 615,000 agricultural laborers.

Diana Lyons, a lawyer for the United Farm Workers, said the decision will enable farm owners to fire undocumented alien workers illegally "with impunity." The proposed policy reversal, she predicted, "will encourage employers to hire undocumented workers, who will not be covered by the protections of the act."

David Stirling, the board's general counsel, said Lyons' characterization of the potential impact of the decision was "exaggerated." He said the anticipated decision represents a "compromise" between the original board decision and what farm owners had advocated.

In a short order Monday, the ALRB told informed the parties in the case--the UFW and the Rigi Co., a Napa Valley-based grape grower--that they have 10 days to tell the agency why its earlier decision should not be reversed.

Last year, the board ordered Rigi to reinstate, with back pay, five workers it had fired after they supported the UFW in an unsuccessful 1981 election campaign.

In that decision, the board ruled that a 1984 U.S. Supreme Court decision did not limit the board's authority to force California growers to rehire and give back pay to workers workers fired in violation of the state's Agricultural Labor Relations Act.

In that case, called Sure-Tan vs. National Labor Relations Board, the Supreme Court held that an employer was not obligated to rehire undocumented aliens it had turned into the Immigration and Naturalization Service in order to thwart a union organizing drive--even though such an action by the employer constituted an unfair labor practice.

The court said undocumented aliens are entitled to the protections of federal labor law, but it also noted that inviting the deported workers back into the country from Mexico to collect back pay would pose a "potential conflict" with the Immigration and Naturalization Service's goal of deterring the entry of such persons.

The ALRB's 1985 decision noted that farm workers were specifically excluded by the National Labor Relations Act when it was enacted 50 years earlier. And the board noted that the California Legislature made no distinction between the relief to be provided to documented and undocumented aliens when it enacted the state's farm labor law in 1975.

Additionally, the board said, there was no "actual conflict" between its reinstatement and back pay orders and federal immigration laws. It noted that under federal law employers are not prohibited from employing undocumented aliens.

In a dissenting opinion--which would now become board policy--two board members said last year that the ALRB should allow growers to introduce a final deportation order to rebut a presumption that workers were entitled to reinstatement and back pay. But the majority said that if such a procedure was adopted, it would invite growers to call the INS when it wanted to get rid of a worker.

Rigi has unsuccessfully contested the 1985 ALRB decision in state and federal court and still has an appeal pending in the U.S. 9th Circuit Court.

The board gave no explanation of its action, which was dated last Thursday and made available to the press Monday. The order was signed by its executive secretary, Stuart Wein. Board member John P. McCarthy, one of the original dissenters and now the senior member of the board, said he could not comment because the board has not issued its decision on the case yet. Jyrl James-Massengale and Gregory Gonot, the other two members of the current majority were not in Sacramento Monday and unavailable for comment.

But Patrick W. Henning and Jorge Carrillo, the two liberals on the ALRB, issued sharp dissents from the board's action Monday.

Henning said the board's decision to act on its own "wreaks havoc upon the well-settled principle that controversy should be resolved once, not more than once." He noted that the board's 1985 decision has withstood appeals to two state courts and a federal court.

Randolph C. Roeder, a lawyer for Rigi in San Francisco, said the board's action "partially pleased" him. He said an individual should have to prove his right to work in this country before he is entitled to back pay or reinstatement.

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