Hoffman Plastics as Labor Law—
Equality at Last for Immigrant
Workers?
By ELLEN DANNIN*
Introduction
HOFFMAN
PLASTICS,1 THE POSTER CHILD of immigration
cases—and law—gone wrong,2 is popularly viewed as a case that imposed penalties unique to immigrant workers. For example, one author says of Hoffman Plastics:
[A]fter Hoffman, employers are now de jure exempt from ordinary
labor liability in many circumstances (previously, employers were at
best de facto exempt, in light of the reluctance of some undocumented workers to file labor complaints).3
It is true that the Supreme Court decision in Hoffman Plastics can
relieve an employer who illegally fires an undocumented worker from
owing a back pay remedy under the National Labor Relations Act
* Fannie Weiss, Distinguished Faculty Scholar and Professor of Law, Penn State
Dickinson School of Law and author of TAKING BACK THE WORKERS’ LAW: HOW TO FIGHT
THE ASSAULT ON LABOR RIGHTS (Cornell Univ. Press 2006). I would like to thank James
Atleson, Robert Baillie, Richard Hurd, Anne Marie Lofaso, Maria Ontiveros, Jim Pope, and
Paul Whitehead for their comments, and Michael Berkheimer for his research assistance.
1. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). The facts, analysis, and remedies are set out in greater detail in the NLRB’s decision. See Hoffman Plastic
Compounds, Inc., 314 N.L.R.B. 683 (1994).
2. See, e.g., Christopher David Ruiz Cameron, Borderline Decisions: Hoffman Plastic
Compounds, the New Bracero Program, and the Supreme Court’s Role in Making Federal Labor
Policy, 51 UCLA L. REV. 1 (2003); Ruben J. Garcia, Ghost Workers in an Interconnected World:
Going Beyond the Dichotomies of Domestic Immigration and Labor Laws, 36 U. MICH. J.L. REFORM
737 (2003); Maria L. Ontiveros, Immigrant Workers’ Rights in a Post-Hoffman World—Organizing Around the Thirteenth Amendment, 18 GEO. IMMIGR. L.J. 651 (2005); Marianne Staniunas,
Comment: All Employees Are Equal, but Some Employees Are More Equal Than Others, 6 U. PA. J.
LAB. & EMP. L. 393 (2004); Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6
U. PA. J. LAB. & EMP. L. 497 (2004).
3. Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 216 (2007); see also Catherine Fisk & Michael
Wishnie, The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants, in LABOR LAW STORIES 399 (Laura J. Cooper & Catherine
Fisk eds. Foundation Press 2005).
393
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(“NLRA”).4 However, the sad truth is, rather than creating an injury
unique to immigrants, Hoffman Plastics is better seen as part of the
long American tradition of judicial hostility toward unions and labor
law. Thus, as discussed in more detail in this Article, the Supreme
Court held that, although Hoffman Plastics violated the NLRA by firing Jose Castro in retaliation for his union activities, Hoffman Plastics
owed no back pay because Castro had violated immigration laws. In
1939 and 1942, the Supreme Court held that Fansteel Metallurgical
and Southern Steamship had violated the NLRA for illegally firing
workers for their union activities, but owed these workers no back pay
because they had violated various laws by staging sit-down strikes. In
other words, the judicial tradition of refusing to enforce the rights
Congress created under the NLRA applies equally to immigrant and
native workers. This does not mean that immigration status, law, and
policy played no role in Hoffman Plastics’ outcome. Rather, we cannot
fully understand Hoffman Plastics—and, thus, how to redress the situation—unless we understand how the courts have historically treated
all workers, both immigrant and native, in the United States.
Furthermore, the NLRA cannot be fully understood outside its
historical context. Professors James Atleson and Karl Klare have
shown that the disconnect between the clear language in the law
passed by Congress, and the law as it is applied today, is the result of
decades of “judicial amendments” that weakened or eliminated
worker rights and protections created by Congress.5 Hoffman Plastics
cannot be fully understood without seeing it as a recent link in this
judicial legacy that preceded the enactment of the NLRA.
The long legacy of judicial amendments is accompanied by the
legacy of scholars who criticized these judicial actions. For example, in
1935, as Congress debated the enactment of the NLRA, the Senate
advocated its enactment and decried court decisions that had “intensified” the relative weakness of the wage earner under earlier laws.6 Attorney Osmond K. Fraenkel observed that judges had “amended”
4. 29 U.S.C. § 151 (2006).
5. See JAMES B. ATLESON, VALUES AND ASSUMPTIONS IN AMERICAN LABOR LAW (1983);
CHARLES O. GREGORY, LABOR AND THE LAW 239 (2d ed. 1958); Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941, 62 MINN.
L. REV. 265 (1978); see also Frank W. Munger, Social Citizen as “Guest Worker”: A Comment on
Identities of Immigrants and the Working Poor, 49 N.Y.L. SCH. L. REV. 665 (2004) (arguing that
declining conditions of low-wage labor actually predated immigration and has long been
supported by changes in domestic social policies).
6. S. REP. NO. 573, at 3 (1935), reprinted in 2 LEGISLATIVE HISTORY OF THE NATIONAL
LABOR RELATIONS ACT, 1935, at 2300, 2302 (1949).
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
395
earlier labor laws by declaring that a statute merely embodied the
common law; that the legislature had no authority to take away powers
inherent in judges; and that any other interpretations would be
unconstitutional.7
It would, no doubt, be cold comfort to employees whose rights
today are limited by decades of NLRA judicial amendments to hear
that, by 1935, the process of judicial amendments had a long pedigree.8 It would, no doubt, be dispiriting to know that when Congress
drafted the NLRA, it was still smarting from the experience of passing
predecessor laws that were all judicially amended. These antecedents
of the NLRA included the Clayton Act,9 passed in 1914 to reverse judicial amendments of the Sherman Act10 that destroyed worker rights to
organize by giving federal courts the power to issue sweeping injunctions in labor disputes.11 That hope proved hollow, for in 1932, Congress tried to overturn judicial amendments of the Clayton Act that
had given courts new power to thwart the act of worker organizing by
passing the Norris-LaGuardia Act.12 Understanding the NLRA requires seeing it both as part of this statutory lineage and as affected by
the same forces.
It would also, no doubt, be bitter to the drafters of the NLRA to
know that not only has their struggle to enact a law that truly promoted labor rights failed, but also that workplace laws continue to be
subject to the process of judicial amendments and congressional repeals today. For example, Congress amended Title VII13 in 1978,14
7. Osmond K. Fraenkel, Judicial Interpretation of Labor Laws, 6 U. CHI. L. REV. 577, 592
(1939) (discussing history of judicial amendments of progressive labor laws); see also Judge
Stephen Adler, Further Reasons for the NLRB’s Inability to Guarantee American Workers the Freedom to Organize and Bargain Collectively: Comment on Autonomous and Politicized: The NLRB’s
Uncertain Future, 26 COMP. LAB. L. & POL’Y J. 261 (2005). A study of judicial decision making found that “conservative members of the Rehnquist Court are using the canons in such
contested cases to ignore—and thereby undermine—the demonstrable legislative preferences of Congress.” James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive
Quest for Neutral Reasoning, 58 VAND. L. REV. 1 (2005); see also James J. Brudney, Sara
Schiavoni & Deborah J. Merritt, Judicial Hostility Toward Labor Unions? Applying the Social
Background Model to a Celebrated Concern, 60 OHIO ST. L.J. 1675 (1999).
8. Fraenkel, supra note 7; J. Louis Warm, A Study of the Judicial Attitude Toward Trade
Unions and Labor Legislation, 23 MINN. L. REV. 255, 354–56 (1939) (describing judicial
amendments of the Sherman, Clayton, Norris-LaGuardia, and National Labor Relations
Acts).
9. 15 U.S.C. §§ 15, 17, 26 (2006); 29 U.S.C. § 52 (2006).
10. 15 U.S.C. §§ 1–7 (2006).
11. Lewis H. Van Dusen, The Progress of Labor Law, 14 TEMP. U. L. Q. 1, 13 (1939).
12. 29 U.S.C. §§ 101–115 (2006).
13. Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (2006).
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1991,15 and 2009,16 and the Americans with Disabilities Act (“ADA”)17
in 2008,18 in order to overturn judicial amendments and reinstate the
laws Congress originally wrote.
Most laws, however, are not amended because the cost of restoring them to their original purpose is too great. Instead, most of these
laws linger on, hobbled, ineffective, and despised. For example, the
ADA was successfully amended in 2008 only because of the personal
stake and strong support of Wisconsin Representative F. James Sensenbrenner, one of the ADA’s original authors. Even with the support
of this powerful man, it took over a year to secure the passage of a
Congressional amendment to overturn the judicial amendments.19 In
2007, at a press conference in support of restoring the ADA, Representative Sensenbrenner said:
The Supreme Court has slowly chipped away at the protections of the ADA, leaving millions of citizens vulnerable to discriminatory treatment. The court’s interpretation created a vicious
circle for Americans with disabilities. It created a broad range of
people who benefit from “mitigating measures,” such as improvements in medicine, who still experience discrimination from employers, yet have been labeled “not disabled enough,” to gain the
protections of the ADA. This is unacceptable.
Today, we want to place the ADA rightfully back among our
Nation’s great civil rights laws.20
Unions have spent years lobbying for the enactment of the Employee Free Choice Act (“EFCA”), legislation that is a response to judicial amendments and intended to make union organizing easier.21
The EFCA and ADA amendment campaigns have required costly lobbying and powerful supporters. Most judicially amended laws, how14. See Pregnancy Discrimination Act of 1978, 42 U.S.C § 2000e(k) (2006) (enacted to
overrule General Electric Co. v. Gilbert, 429 U.S. 125 (1976) and Geduldig v. Aiello, 417 U.S.
484 (1974)).
15. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (as codified and
amended in 42 U.S.C. 1981 (1994)).
16. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.
17. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2006).
18. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
19. 154 CONG. REC. H8290, 1129–30 (daily ed. Sept. 17, 2008) (statement of Rep.
Sensenbrenner).
20. Congressman Jim Sensenbrenner, Statement at ADA Restoration Act Press Conference (July 26, 2007), http://sensenbrenner.house.gov/News/DocumentSingle.aspx?
DocumentID=70169.
21. Recently, the legislation has been unsuccessfully introduced a number of times.
See, e.g., Employee Free Choice Act of 2009, H.R. 1409, 111th Cong.; Employee Free
Choice Act, H.R. 800, 110th Cong. (2007); Employee Free Choice Act, H.R. 1696, 109th
Cong. (2005).
Fall 2009]
EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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ever, lack sufficiently powerful partisans and thus linger in their
weakened state. The enervated Family and Medical Leave Act
(“FMLA”), legislation to protect the right of employees to return to
their jobs after taking unpaid leave to care for family members or for
their own illness, and the Occupational Safety and Health Act
(“OSHA”), legislation to promote safe workplaces, have long failed to
achieve their purposes because no partisan with sufficient power and
commitment to restore them to their original purposes has come
forward.22
The National Labor Relations Act, legislation created to promote
equality of bargaining power between employers and employees, suffered judicial amendments almost immediately. It was these events, in
the NLRA’s early days, that laid the legal foundation for the outcome
in Hoffman Plastics. Indeed, the Hoffman Plastics majority opinion
makes the connection explicit. Only by recovering that history can
one understand this longstanding—and continuing—judicial dynamic and develop strategies to restore and protect worker rights.
This Article recounts this history of the NLRA, the events leading up
to Hoffman Plastics, and the impact that history and case law have had
on worker rights as an essential foundation for constructing a strategy
to reverse and end this pernicious longstanding dynamic.
I.
The Promise of a Nation Under Law and How Judges
Have Subverted that Promise
Unions have been essential in ensuring that workers have the
power to demand fair treatment and a fair share in the wealth of this
nation.23 Thus, the promise of jobs draws migrants to the United
States in search of a better material and civic life, and unions and
union membership have helped make jobs good jobs. Ironically, both
immigrants and unions are often accused of being un-American and
of undermining the economic welfare of the United States.24 For example, the recent discussion around bailouts for American automo22. There is, of course, often debate as to Congress’s intent and whether that intent
included giving courts the power to make policy decisions. See GEORGE I. LOVELL, LEGISLATIVE DEFERRALS: STATUTORY AMBIGUITY, JUDICIAL POWER, AND AMERICAN DEMOCRACY (2003).
23. See RICHARD B. FREEMAN & JAMES L. MEDOFF, WHAT DO UNIONS DO? (1984).
24. Prime proponents of anti-union positions are the National Right to Work Legal
Defense Foundation and the National Right to Work Committee. According to the National Right to Work Legal Defense Foundation’s website, “No force is inflicting more damage on our economy, citizenry, and cherished democracy than the union bosses.” National
Right to Work Legal Defense Foundation, How Can I Help?, http://www.nrtw.org/hcih/
(last visited Oct. 31, 2009).
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bile companies included attacks on the wages and benefits of
unionized workers as forces responsible for the automobile industry’s
woes.25 High percentages of immigrants to the United States support
unions and unionization.26 These immigrants are even willing to risk
the jobs they came for and deportation. In Hoffman Plastics, immigrant
workers took that risk and lost when they were fired for organizing a
union, a penalty that all American workers face for organizing. The
immigrant workers in Hoffman Plastics who lacked the legal right to
work in the United States also, of course, faced penalties under immigration laws, including deportation. The Supreme Court majority in
Hoffman Plastics effectively increased the penalty under immigration
laws by using violation of those laws as grounds for also denying the
right to a remedy under the NLRA.
Thus, citizenship status mattered in Hoffman Plastics only in the
details of the excuse the Court would use to deny an NLRA remedy to
an employee whose rights had been violated. The intellectual groundwork for that deprivation was created in cases that had, decades
before, created a doctrine that even trivial employee wrongdoing relieved the employer of its NLRA obligations. That doctrine undermined the effectiveness of the NLRA and ignored NLRA language
that required that remedies promote the Act’s polices,27 including
promoting employee freedom of association, equality of bargaining
power, and mutual aid or support; protecting forming and joining unions and employees’ right to strike; and encouraging collective bargaining.28 These NLRA policies and rights, and their enforcement by
providing effective remedies, were intended to overturn decades of
court decisions that had strengthened employer and corporate
power.29
Thus, the decisions that led to Hoffman Plastics destroyed employee freedom of association, equality of bargaining power, mutual
aid or support, forming and joining unions, and promoting collective
bargaining, thus violating the express command of section 10(c) of
25. See, e.g., Micheline Maynard, U.A.W. at Center of Dispute over Bailout, N.Y. TIMES,
Dec. 12, 2008, http://www.nytimes.com/2008/12/13/business/13uaw.html.
26. IMMANUEL NESS, IMMIGRANTS, UNIONS, AND THE NEW U.S. LABOR MARKET (2005)
(detailing how immigrant support for unions has not always been met with union support
for immigrant members).
27. National Labor Relations Act § 10(c), 29 U.S.C. § 160(c) (2006) [hereinafter
NLRA].
28. 29 U.S.C. §§ 151, 157, 163 (2006).
29. See Warren Woods & Altha Connor Wheatley, The Wagner Act Decisions—A Charter
of Liberty for Labor?, 5 GEO. WASH. L. REV. 846, 854–57 (1937).
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
399
the NLRA.30 Furthermore, relieving employers of their obligation to
provide back pay or, indeed, any remedy to illegally fired workers
makes it triply attractive to hire workers suspected of not being in this
country legally. First, workers’ fear of sanctions for violating immigration laws may make them timid about organizing. Second, if they dare
organize, firing them defeats unionization. Third, Hoffman Plastics
frees the employer from the customary remedy of back pay.31
The Hoffman Plastics majority was not unaware of these consequences. Rather, it dismissed the concerns of the National Labor Relations Board (“NLRB”) and the Immigration and Naturalization
Service (“INS”)—the two expert federal agencies most affected by the
outcome of the case—that denying a monetary remedy would actually
undermine the enforcement of both immigration and labor laws.32
The Court also ignored the court of appeals majority decision that,
under the law at the time, the discharged employee, Castro, had actually violated no law by working in the United States.33
The Hoffman Plastics Court’s decision to relieve a law violator of
its obligations under the law on the premise of supporting the enforcement of another law only makes sense when placed within the
NLRA’s historical context, in which judges created barriers to remedies.34 For example, courts have inappropriately imported into the
NLRA’s remedial scheme a contract doctrine that requires fired workers to engage in a job search to “mitigate” damages, even though the
30. NLRA § 10(c), 29 U.S.C. § 160(c) (2006).
31. Wishnie, supra note 3, at 216–17.
32. Brief for the National Labor Relations Board at 15, 32, Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (No. 00-1595), 2001 WL 1597748. The court of
appeals majority decision made similar points in support of its findings and also found
that, under the law at the time, the discharged employee, Castro, violated no law by working in the United States. Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229, 240–43
(D.C. Cir. 2000).
33. Hoffman Plastics, 208 F.3d at 240–43.
34. See, e.g., Anne Marie Lofaso, Workplace Dissent, Democracy, and Justice (unpublished paper, on file with author). Lofaso discusses how employee rights to express their
views about workplace conditions have been eroded through judicial amendments. In
NLRB v. Local U. No. 1229, Int’l Bhd. of Elec. Workers, 346 U.S. 464 (1953), more commonly
known as “Jefferson Standard,” the Supreme Court held that employee activity legal under
the NLRA lost its legal protection when the courts saw the conduct as disloyal to the workers’ employer. Id. at 477–78. This trend has continued in more recent cases. In each of
these cases, the employer has taken adverse employment actions against employees for
using speech to communicate an ongoing dispute with their employer and for criticizing
that employer’s behavior in that dispute. For a discussion of other recent cases, see Anne
Marie Lofaso, September Massacre: The Latest Battle in the War on Workers’ Rights Under the
National Labor Relations Act, ISSUE BRIEF (Am. Const. Soc’y, Wash., D.C.) May 13, 2008, at
11–12, available at http://www.acslaw.org/node/6664.
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NLRA contains no such requirements. Completely missing from the
Court’s menu of remedies is redress for the victims of the violator’s
actions and an analysis that is faithful to Congress’ command that
NLRA remedies promote the Act’s policies.35 The Court seems to
have forgotten its oft-quoted observation that the “most elementary
conceptions of justice and public policy require that the wrongdoer
shall bear the risk of the uncertainty which his own wrong has
created.”36
In Hoffman Plastics, the Court’s dismissal of the unanimous positions of the two expert agencies—the NLRA and the INS—by substituting its own judgment was something the Supreme Court itself had
forbidden as long ago as 1941:
A statute expressive of such large public policy as that on
which the National Labor Relations Board is based must be broadly
phrased and necessarily carries with it the task of administrative
application. . . . But, in the nature of things Congress could not
catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to
effectuate these policies in an infinite variety of specific situations.
Congress met these difficulties by leaving the adaptation of means
to end to the empiric process of administration. The exercise of the
process was committed to the Board, subject to limited judicial review.37
Sixty years ago, the Supreme Court endorsed court deference to
the NLRB’s expertise; yet, the Hoffman Plastics decision and oral argument have only contemptuous skepticism for the proposition that
these two expert agencies could understand the impact that eliminating remedies would have on enforcing the law.
II.
Oral Argument in Hoffman Plastics: Shifting Blame to the
Victim
At oral argument in Hoffman Plastics, Chief Justice Rehnquist expressed concern—and even zeal—for ensuring that wrongdoers not
be rewarded.38 However, the violator of the NLRA, the respondent
employer, was not the wrongdoer that concerned him. Rather, he and
other justices saw the employer as the victim and strove to shift blame
to the discriminatee in order to free the employer from its remedial
obligations. Chief Justice Rehnquist stated:
35. NLRA § 10(c), 29 U.S.C. § 160(c) (2006).
36. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946).
37. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941) (emphasis added); see also
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945).
38. Transcript of Oral Argument, Hoffman Plastics, 535 U.S. 137 (2002) (No. 00-1595),
2002 WL 77224.
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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Our decision in Sure-Tan followed this line of cases and set
aside an award closely analogous to the award challenged here.
There we confronted for the first time a potential conflict between
the NLRA and federal immigration policy, as then expressed in the
Immigration and Nationality Act (INA) . . . .
....
For example, the Board was prohibited from effectively rewarding
a violation of the immigration laws by reinstating workers not authorized to reenter the United States.39
Justice Scalia contended that the discriminatee’s inability to mitigate damages by securing legal employment in the United States and
thus decrease the amount of back pay owed him by the employer was
essentially equivalent to or greater than the employer’s original violation.40 Indeed, Justice Scalia saw the impossibility of mitigation of
damages as an argument to prevent a wily discriminatee from taking
advantage of a hapless employer. Otherwise, he argued: “If [the discriminatee is] smart he’d say, how can I mitigate, it’s unlawful for me
to get another job. . . . I can just sit home and eat chocolates and get
my back pay.”41
Under the NLRA, only the discriminator’s intent matters. But the
analysis advocated by justices who joined the Hoffman Plastics’ majority
“rewrote” the NLRA to shift that inquiry to reverse the roles of victim
and victimizer. As Justice Scalia put it:
In most back pay situations where the employer has committed an unfair labor practice and dismisses an employee improperly,
the amount he’s going to be stuck with for back pay is limited by the fact
that the person unlawfully fired has to mitigate. He has to find another job. If he could have gotten another job easily and doesn’t
do so, the employer doesn’t have to pay. Now, how is this unlawful
alien supposed to mitigate? . . . Mitigation is quite impossible, isn’t it?
....
I mean, but what you’re saying is when both the employer and
the employee are violating the law, we’re going to—you’re asking
the courts to give their benediction to this stark violation of United
States law by awarding money that hasn’t even been worked for.
I—it’s just something courts don’t do.42
Given that back pay—and front pay—are standard remedies that
involve payment of money that is not worked for and are remedies
found under a wide range of state and federal labor, employment,
and tort laws, it seems unlikely that a jurist of Justice Scalia’s experi39. Hoffman Plastics, 535 U.S. at 144–45.
40. See Transcript of Oral Argument, Hoffman Plastics, 535 U.S. 137 (No. 00-1595),
2002 WL 77224.
41. Id. at 32–33.
42. Id. at 31, 32, 38 (emphasis added).
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ence could be genuinely shocked—nor actually believe—that back
pay is a flawed remedy because the money was not worked for. Furthermore, that position only returns the analysis to the reason the
back pay remedy is owed at all: the employer’s violation caused the
unemployment. In addition, Justice Scalia’s math is faulty. In a typical
case, the employer has broken two laws in hiring and then firing the
worker and should be responsible for remedying both violations.
Under Justice Scalia’s view, the worker, who has only violated one
law—entering the country illegally—should be punished for breaking
that law and, in addition, be deprived of a remedy for not continuing
to work in the United States.
Throughout the oral argument, all parties treated the obligation
to mitigate damages and the limited palette of remedies under consideration as unalterable parts of the NLRA. In fact, section 10(c)’s language is more of a floor than a ceiling, requiring only that remedies
promote the NLRA’s policies. Rather than considering how to obey
Congress’ command under section 10(c), the justices focused only on
ways to weaken NLRA rights and remedies.
Justice Kennedy’s contribution to the oral argument was to construct an entrapment defense that suggested that blame should be
shifted from the employer to the union. He did this by speculating
that the union had allowed undocumented workers to participate in
the union organization campaign, thus inducing the employer to fire
the employee-organizer. He also suggested that if the union allowed
undocumented workers to participate in organizing, this conduct
must have violated some law:
Well, when the Board makes its calculus and when the Government made its calculus, did it give any consideration to the fact
that a union ought not as a matter of policy to use illegal aliens for
organizing activity, or do you think the union can do that?
....
Is it consistent with the labor laws of the United States for the
union to say it knowingly uses an alien for organizing activity?
....
Here, what you’re saying is that a union can, I suppose even knowingly, use illegal aliens on the workforce to organize the employer, knowing
that by doing that the alien will still be entitled to back pay. That seems to
me completely missing from any calculus, from any equitable
calculus in your brief. I just—and since it’s a more direct link, I’m
quite puzzled by it.43
43. Id. at 34–35 (emphasis added).
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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As explored in the next section, this discussion and the decision
that flowed from it are the direct descendants of a judicial amendment that created the doctrine that two wrongs means that the NLRA
wrongdoing employer has no obligation to remedy its violation, while
the wronged employee has no remedy.
A. The Supreme Court Treated Jose Castro as Any Employee, No
Better and No Worse
Chief Justice Rehnquist’s majority opinion has a more serious
tone than his statements at oral argument but, nonetheless, makes
clear that the case’s focus is on the worker’s conduct, rather than the
employer who has violated the NLRA. This is the case, even if legal
sanctions specific to the employee’s violation have been imposed. Immediately after Chief Justice Rehnquist recited the facts and procedural history of the case, he said:
This case exemplifies the principle that the Board’s discretion
to select and fashion remedies for violations of the NLRA, though
generally broad . . . is not unlimited. . . . Since the Board’s inception, we have consistently set aside awards of reinstatement or
backpay to employees found guilty of serious illegal conduct in
connection with their employment. In Fansteel, the Board awarded
reinstatement with backpay to employees who engaged in a “sit
down strike” that led to confrontation with local law enforcement
officials. We set aside the award, saying:
“We are unable to conclude that Congress intended to
compel employers to retain persons in their employ regardless of their unlawful conduct,—to invest those who go on
strike with an immunity from discharge for acts of trespass or
violence against the employer’s property, which they would
not have enjoyed had they remained at work.”
Though we found that the employer [Fansteel] had committed serious violations of the NLRA, the Board had no discretion to
remedy those violations by awarding reinstatement with backpay to
employees who themselves had committed serious criminal acts.
Two years later, in Southern S.S. Co., . . . the Board awarded reinstatement with backpay to five employees whose strike on shipboard had amounted to a mutiny in violation of federal law. We set
aside the award, saying:
“It is sufficient for this case to observe that the Board has
not been commissioned to effectuate the policies of the Labor
Relations Act so single-mindedly that it may wholly ignore
other and equally important [c]ongressional objectives.”
. . . Since Southern S.S. Co., we have accordingly never deferred to
the Board’s remedial preferences where such preferences poten-
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tially trench upon federal statutes and policies unrelated to the
NLRA.44
Of course, given that the NLRB is required to enforce only one
law, it is not surprising it would be “singled-minded” in its zeal for
enforcing the NLRA, though not to the extent suggested by Justice
Rehnquist. Justice Rehnquist was certainly correct in his observation
that the courts have refused to defer to Board remedies.45 He was,
however, wrong that the Board’s remedies were mere preferences and
wrong about which body was enforcing Congress’ intent.
Indeed, in drafting the NLRA, Congress anticipated views such as
those of Justice Rehnquist and cautioned against making the NLRA
into a general remedy for all ills related to the workplace when cases
involved violations of law and civil order in addition to violations of
the NLRA.46 The two cases Justice Rehnquist relied on in Hoffman
Plastics—NLRB v. Fansteel Metallurgical Corp. (“Fansteel”)47 and Southern
S.S. Co. v. NLRB (“Southern Steamship”)48—were decided by the Supreme Court in 1939 and 1942. In Fansteel and Southern Steamship, employees struck in response to serious employer mistreatment and legal
violations, including refusal to recognize and bargain with the employees’ union representative,49 and were later charged with trespass,
mutiny, and other violations as part of the acts of striking. Of strikes,
the NLRA says: “Nothing in this [Act], except as specifically provided
for herein, shall be construed so as either to interfere with or impede
or diminish in any way the right to strike, or to affect the limitations or
qualifications on that right.”50 The outcome of these two cases limited
both NLRA remedies and the right to strike.
44. Hoffman Plastics, 535 U.S. at 142–44 (quoting NLRB v. Fansteel Metallurgical
Corp., 306 U.S. 240, 255 (1939); Southern S.S. Co. v. NLRB, 316 U.S. 31, 47 (1942)).
45. See ELLEN DANNIN, TAKING BACK THE WORKERS’ LAW: HOW TO FIGHT THE ASSAULT
ON LABOR RIGHTS 99–116 (2006).
46. See S. REP. NO. 573, at 17 (1935), reprinted in 2 LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT, 1935, at 2316–17 (1949); see generally Note, 48 HARV. L. REV.
630, 653–54 (1935) (reviewing discussions related to these issues shortly before the Wagner Act was introduced into Congress).
47. 306 U.S. 240 (1939).
48. 316 U.S. 31 (1942).
49. In connection with the pendency of the NLRA, the Senate noted that 50,242,000
working days were lost every twelve months to labor disputes and that “at least 25 percent
of all strikes have sprung from failure to recognize and utilize the theory and practices of
collective bargaining.” S. REP. NO. 573, at 1–2 (1935), reprinted in 2 LEGISLATIVE HISTORY OF
THE NATIONAL LABOR RELATIONS ACT, 1935, at 2301 (1949).
50. NLRA § 13, 29 U.S.C. § 163 (2006).
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In Fansteel, company employees organized a union shortly after
the NLRA was enacted and requested that their employer bargain.51
Rather than obey the law, the employer refused to recognize and bargain with the union and, instead, engaged the aid of an anti-union
employer group to create a company union and hired an industrial
spy and provocateur. After weeks of employer refusals to bargain, the
workers struck by occupying two buildings. Employer efforts to dislodge them included the use of force and violence and a state court
injunction. The strikers finally left after emetic gas was used, and some
were found guilty of contempt, trespass, and related acts under state
law. Several served jail sentences and were fined.
Meanwhile, the employer continued its refusal to obey the NLRA,
including, among other things, installing a company union (an act
that violated section 8(a)(2)) and offering reinstatement to any
striker who was willing to abandon their rights under the NLRA (acts
that violate section 8(a)(3)). This should have been an easy case with
regard to the remedy. Employees who violated trespass and other laws
and who had been found in contempt of the injunction were not refused reinstatement, as long as they renounced their NLRA rights.
The Fansteel majority, however, had difficulty limiting an employer’s right to choose whom to hire or refuse to hire, even when
those acts violated the NLRA:
We find it unnecessary to consider in detail the respective
contentions as to respondent’s offer of reemployment, for we think
that its action did not alter the unlawful character of the strike or
respondent’s rights in that aspect. The important point is that respondent stood absolved by the conduct of those engaged in the
‘sit-down‘ from any duty to reemploy them, but respondent was
nevertheless free to consider the exigencies of its business and to
offer reemployment if it chose. In so doing it was simply exercising
its normal right to select its employees.52
The dissent by Justices Reed and Black explained why allowing
the employer’s traditional rights of hire to trump the NLRA and clear
congressional intent was not appropriate:
51. These facts are taken from the decisions in Fansteel Metallurgical Corp. v. Lodge 66 of
the Amalgamated Ass’n of Iron, Steel and Tin Workers of N. Am., 14 N.E.2d 991 (Ill. App. Ct.
1938), and In re Fansteel Metallurgical Corp., 5 N.L.R.B. 930 (1938), as well as Henry M. Hart,
Jr. & Edward F. Prichard, Jr., The Fansteel Case: Employee Misconduct and the Remedial Powers
of the National Labor Relations Board, 52 HARV. L. REV. 1275 (1939). See also Nathaniel L.
Nathanson & Ellis Lyons, Judicial Review of the National Labor Relations Board, 33 ILL. L. REV.
749 (1939) (Fansteel’s anti-union behavior was not unique in this period).
52. Fansteel Metallurgical Corp., 306 U.S. at 259.
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None on either side of the disputed issue need be suspected of
‘countenancing law-lessness,’ or of encouraging employees to resort to ‘violence in defiance of the law of the land.’ Disapproval of
a sit-down does not logically compel the acceptance of the theory
that an employer has the power to bar his striking employee from
the protection of the Labor Act.
The Labor Act was enacted in an effort to protect interstate
commerce from the interruptions of labor disputes. This object
was sought through prohibition of certain practices deemed unfair
to labor, and the sanctions adopted to enforce the prohibitions included reinstatement of employees. To assure that the status of
strikers was not changed from employees to individuals beyond the
protection of the act, the term employee was defined to include
‘any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair labor practice . . . .’ s. 2(3), Act of July 5, 1935. Without this
assurance of the continued protection of the act, the striking employee would be quickly put beyond the pale of its protection by
discharge.53
In other words, after the enactment of the NLRA, employers retained the right to hire or fire whomever they wished, for any reason
they wished, as long as that reason was not itself a violation of the
NLRA. Given that the employer’s only ground for denying reinstatement was support for the employees’ support for their freely chosen
union, and that the employer reinstated even workers who had violated laws and been found in contempt of court—as long as they forsook their union, the remedy in Fansteel should have been
uncontroversial. Indeed, such a distinction itself was evidence of illegal discrimination.54 However, even though the employer was unconcerned about re-employing employees who had violated the court
order and state law, the Supreme Court majority was zealous about
supporting the employer’s right not to offer reinstatement to the strikers who refused to forsake their NLRA rights.
The second case the Hoffman Plastics’ majority pointed to, Southern Steamship, also involved workers who struck in reaction to their employer’s labor law violations. As in Fansteel, serious employer violations
of labor law, including refusal to recognize and bargain with their
union, led to a one-day peaceful sit-in strike aboard the steamship.
When the ship reached its destination, the employer fired the five
crew members who had been most active in the strike. Professor Ah53. Id. at 266.
54. One way of viewing the employer’s offer of reinstatement to lawbreakers who were
willing to abandon their union is as impeaching its later defense against hiring pro-union
employees—that it did not want to employ lawbreakers.
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med White’s account of these events included parallels with Fansteel in
the Court’s interpretation of NLRA rights.
This, it seemed at the time, constituted another violation of the
Wagner Act and in the view of the union, the Board, and the Third
Circuit Court of Appeals, clearly warranted the standard remedies
of reinstating the fired strikers and awarding them back pay. But
when the matter was finally decided by the Supreme Court, the
Court found against the Board and the seamen. It held that a shipboard strike constituted an act of mutiny, a felony under federal
law, that the strike aboard the City of Fort Worth was illegal and unprotected, and that the Board therefore could not remedy the discharges by ordering that the seamen be reinstated and provided
back pay.55
Other similarities to Fansteel included the Supreme Court’s treatment of the employer labor law violator and the employees.
Southern Steamship held that the mere unlawfulness of a strike limited the Board’s remedial powers and with this the right to strike.
The Court justified this rule by speculating widely as to the inherent risks of mutiny. In so doing it established this kind of speculation as a legitimate mode of analysis for courts to engage in to test
the limits of the Board’s remedial powers and the reach of the
Act’s protections. In fact, Southern Steamship established a clear rule
to the effect that the Board’s remedial powers and the Act’s protections should yield wherever they came into conflict with other federal statutes or policies.56
Thus, in these cases the Court laid the foundation for Hoffman
Plastics. In all three cases, the Court ignored the employer’s legal violations, the workers’ motives57 to assert their legal rights and resist
their employer’s lawless behavior, and the section 10(c) requirement
that NLRA remedies promote its policies. Furthermore, in each case,
the Court “amended” the law to include provisions Congress had rejected when it drafted the law.58 In its place, the Court created a quasiequitable doctrine that denied remedies to employees the Court saw
as having unclean hands. Accompanying that innovation was a haphazard decision-making process based more in speculation than in a
careful application of law to facts.
A contemporaneous analyst of Fansteel observed:
55. Ahmed A. White, Mutiny, Shipboard Strikes, and the Supreme Court’s Subversion of New
Deal Labor Law, 25 BERKELEY J. EMP. & LAB. L. 275, 279 (2004).
56. Id. at 280–81 (emphasis in the original).
57. See Jim Pope, Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–1958, 24 LAW & HIST. REV. 45, 48 (2006) (arguing that the sitdowners
were motivated to engage in legal practice, including enforcing the NLRA and the U.S.
Constitution).
58. See infra Part II.B.1–4.
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No single decision ever shapes inflexibly the judicial approach to a
complex and genuinely troublesome problem. The emotion-ridden issues of employee misconduct, packed as they are with implications for so many of the basic conflicts of society, are least of all
susceptible to solution at one stroke. If the analysis here made is
accepted, it is unfortunate that the Court—confronted with those
issues—appeared to treat the mere fact of violation of state law as
so nearly conclusive a touchstone of judgment.59
However, there was not just one case, even at that time. The Fansteel majority built on Consolidated Edison Co. v. NLRB (“Consolidated
Edison”),60 a 1938 case in which the employer had also illegally refused
to recognize its employees’ choice of representative. Today, Consolidated Edison is known, not for the violation, but for dictum that judicially amended and limited section 10(c). The Consolidated Edison
majority observed that, in giving the NLRB the power to require affirmative action, Congress had, “of course,” excluded remedies that
were punitive.61 In fact, Chief Justice Rehnquist relied on Consolidated
Edison in a footnote where he considered whether it provided other
grounds to free the law-breaking employer of any obligation to remedy its violations:
Because the [NLRB] is precluded from imposing punitive remedies . . . it is an open question whether awarding backpay to undocumented aliens, who have no entitlement to work in the United
States at all, might constitute a prohibited punitive remedy against
an employer. . . . Because we find the remedy foreclosed on other
grounds, we do not address whether the award at issue here is “‘punitive’ and hence beyond the authority of the Board.”62
B. The Judicial Amendments On Which Hoffman Plastics Is Built
The judicial amendments relied on by the Hoffman Plastics majority differ from precedent and doctrine—although they have now become precedents and doctrine—by the processes through which they
arose and the arc of their development. Their dynamics, which will be
discussed in this section, include: (1) providing by judicial decision
59. Hart & Prichard, supra note 51, at 1327.
60. Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938).
61. Id. at 235–36; see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940). Justice
McReynolds and other justices who dissented from the decision upholding the constitutionality of the NLRA in NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1 (1936), joined the
majority in decisions that made the NLRA less effective, including Consolidated Edison and
Fansteel. See also ATLESON, supra note 5 (Professor Atleson observes that attention must be
paid to courts’ use of the words “of course,” and that those words signal areas where the
courts override the NLRA’s language and congressional intent.).
62. Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137, 152 n.6 (2002) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 905 n.14 (1984)).
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making what Congress had refused; (2) making the NLRA a general
law to right all wrongs; (3) using eligibility for remedies to displace
legal rights; and (4) recasting NLRA rights and purposes as individual
rather than communal rights.
Not only were these elements of judicial amendments discussed
by early twentieth century legal scholars, the term “judicial amendment” was also in use then. Many scholars in that era described and
decried the judicial amendments of their day as lawless decision making but were unsuccessful in ending them. In fact, even judicial
amendments that directly contradict the NLRA’s language are now
treated, not just as black letter law, but as if they are the law Congress
enacted.
It has long been forgotten by most of us that these concerns and
insights of scholars in the early twentieth century even existed. However, their language and analysis are so incisive and relevant to labor
law today that paraphrasing rather than letting them speak to their
progeny, would not be as clear as their own words.
1. Providing by Judicial Decision That Which Congress Rejected
The Fansteel majority established as law provisions that Congress
had rejected when it enacted the NLRA and earlier legislation. For
example, in its May 1, 1935 report,63 the Senate reviewed, and Congress rejected, a number of proposals that would later become “law”
through the process of judicial amendment. The report concluded:
“Proposals such as these under discussion are not new. They were suggested when section 7(a) of the National Industrial Recovery Act was
up for discussion, and when the 1934 amendments to the Railway Labor Act were before Congress. In neither instance did they command
the support of Congress.”64
Immediately after the NLRA became law, commentators decried
what they called “judicial amendments” and the tendency of judges to
reinsert common law concepts into laws that had been expressly enacted to displace those very concepts.65 Restrictions rejected by Con63. S. REP. NO. 573, at 17 (1935), reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE
NATIONAL LABOR RELATIONS ACT, 1935, at 2316–17 (1949).
64. Id.
65. See, e.g., Note, 52 HARV. L. REV. 970, 973 n.28 (1939); Edward Scheunemann, The
National Labor Relations Act Versus the Courts, 11 ROCKY MTN. L. REV. 135, 145 (1939); Warm,
supra note 8. For an extended history of the process of judicial amendments, see GREGORY,
supra note 5; ATLESON, supra note 5; and Klare, supra note 5.
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gress but which, nonetheless, became part of the law through
Fansteel’s judicial amendments to the NLRA included:
Prohibiting, e.g., sitdown strikes . . . strikes accompanied by systematic violence and intimidation, strikes for a closed shop . . . strikes
for the checkoff, strikes to prevent the use of materials, equipment
or services . . . strikes to cause the commission of an illegal act or
the omission of a legal duty, violation of local civil or criminal laws
during the course of a labor dispute, and interference with the omnibus rights of any person enjoyed by him under the Constitution
or laws of the United States.66
Thus, Fansteel achieved what lobbying during and after the pendency of the NLRA had not, and it laid the groundwork for Hoffman
Plastics.
2. Making the NLRA a Law to Right All Wrongs
The Fansteel and Hoffman Plastics majorities justified denying remedies and protections to workers injured by employers who engaged
in a long course of lawlessness on the grounds that the judges were
simply enforcing the law. In Fansteel, workers who had struck in response to employer lawlessness had no remedy for employer violence
and intimidation during the sit-down strike because, rather than focus
on NLRA rights and remedies, the Court was bent on enforcing state
civil and criminal laws. Doing so overwrote the NLRA with irrelevant
common law doctrines. As a result, the Court denied NLRA remedies
to employees on the ground that they had violated state civil or criminal laws during the strike, and did so even though the employer was
willing to reinstate other employees who had committed similar acts,
as long as the employees gave up their rights under the NLRA. The
Hoffman Plastics majority also expressed concern about rewarding employees and workers who had violated other laws, even though this was
a concern their employer did not share. In both Fansteel and Hoffman
Plastics, the employees had already suffered sanctions in the proper
tribunals for violating the laws that so concerned the Court.
In 1935, Congress stated:
Nor can the committee sanction the suggestion that the bill
should prohibit fraud or violence by employees or labor unions.
The bill is not a mere police court measure. The remedies against such
acts in the State and Federal courts and by the invocation of local
police authorities are now adequate, as arrests and labor injunctions in industrial disputes throughout the country will attest. The
Norris-LaGuardia Act does not deny to employers relief in the Federal courts against fraud, violence or threats of violence.
66. Note, supra note 65, at 971 n.9.
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....
In addition, the procedure set up in this bill is not nearly so
well suited as is existing law to the prevention of such fraud and
violence. Deliberations and hearings by the Board, followed by orders that must be referred to the Federal courts for enforcement,
are methods of procedure that could never be sufficiently expeditious to be effective in this connection.
The only results of introducing proposals of this sort into the
bill, in the opinion of the committee, would be to overwhelm the
Board in every case with countercharges and recriminations that
would prevent it from doing the task that needs to be done. There
is hardly a labor controversy in which during the heat of excitement statements are not made on both sides which, in the hands of
hostile or unsympathetic courts, might be construed to come
under the common-law definition of fraud, which in some States
extends even to misstatements innocently made, but without reasonable investigation. And if the Board should decide to dismiss
such charges, its order of dismissal would be subject to review in
the Federal courts.67
Although not a concern in Hoffman Plastics, the Supreme Court in
Fansteel also judicially amended the NLRA’s definition of employee.
As soon as the strike took place the company announced that the
striking employe[e]s were fired, and therefore contended before
the Board and the courts that they were no longer employe[e]s,
could obtain no benefit from the Wagner Act, and therefore could
not be reinstated. The act provides “the term ‘employe[e]’ shall
include . . . any individual whose work has ceased as a consequence
of, or in connection with, any current labor dispute or because of
any unfair labor practice.” To the casual observer and to the Board
that seems to dispose of the contention of the company, for there
was no question but that the strike here was in consequence of a
series of unfair labor practices on the part of the employer. Nevertheless, the Court reversed the ruling of the Board and sustained
the contention of the company on the grounds that Congress had
not intended to include within the definition of employe[e], anyone who engaged in unlawful conduct, even though his conduct
was engendered by unfair labor practices of an employer in the
first place. It is submitted that the decision reads a restriction into
the act which was not placed there by Congress. In that sense the
decision represents on this point a “judicial amendment.”68
67. S. REP. NO. 573, at 16–17 (1935), reprinted in 2 LEGISLATIVE HISTORY OF THE NALABOR RELATIONS ACT, 1935, at 2316–17 (1949) (citations omitted) (emphasis added); see also Scheunemann, supra note 65, 145–46; Note, supra note 65, 974–76 (referring
to Fansteel and NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d Cir. 1938)); Woods & Wheatley, supra note 29, at 859–61. For an example of discussions related to these issues shortly
before the Wagner Act was introduced into Congress, see Note, supra note 46, at 653–54.
68. Scheunemann, supra note 65, at 145. In 1939, Professor Chester C. Ward
observed:
TIONAL
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Cases from Fansteel through Hoffman Plastics—and continuing today—have created a type of reverse preemption of the NLRA. In effect, although the Constitution says federal laws shall be the supreme
law of the land,69 the Court appears to have judicially amended the
Constitution to add “except for the NLRA.” Thus, rather than having
federal law preempt conflicting state law, the Court has created a special doctrine allowing this nation’s most basic labor law to be preempted by other laws—state or federal—when those other laws are
the source for legal misdeeds by employees. The result of doing so is
to free a lawbreaker from remedying its unfair labor practices.
3. Using Eligibility for Remedies to Displace Legal Rights
The Court’s decision in Hoffman Plastics follows a tradition of ignoring and misreading NLRA policies and text. In Fansteel, the Court
displaced what should have been a focus on the appropriate remedy
for the discharged workers with the inappropriate focus on whether
the strikers retained their status as employees. The NLRA’s broad definition of employee shows why such an inquiry is inappropriate: employee “shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or
because of any unfair labor practice . . . .”70
While engaging in that irrelevant inquiry, the Court ignored the
NLRA’s provision on remedies: section 10(c). As enacted by Congress,
judgment as to the remedy to be ordered “under Section 10(c) must
be a disciplined judgment, guided and confined by the necessity of
giving a reasoned explanation of the relation between the grounds of
judgment and the effectuation of the policies of the Act.”71 Just as the
Fansteel majority ignored the command of section 10(c), so too did the
Bizarre interpretations of the Act indicate that the courts sometimes read generally rather than specifically. [In one case, among other examples,] the court
amazingly misconstrued the Board’s jurisdiction to depend upon the existence of
a “labor dispute” as defined in § 2(9), and then, more amazingly, misconstrued
that definition to require a proximate relation of employer-employee, after quoting the words of the statute, which are exactly the reverse.
Chester C. Ward, “Discrimination” Under the National Labor Relations Act, 48 YALE L.J. 1152,
1154–55 n.21 (1939).
69. U.S. CONST. art. VI, cl. 2.
70. 29 U.S.C. § 152(3) (2006). Labor dispute is defined in 29 U.S.C. § 152(9) (2006).
71. Hart & Prichard, supra note 51, at 1315. The Supreme Court in Fansteel not only
judicially amended the NLRA to release employers from remedies when employees had
engaged in misconduct, it also attempted to amend the definition of employee by finding
that once the sit-down strikers were discharged, they were no longer employees and thus
were not entitled to a remedy. Id. at 1309–17. It did so even though the Senate Report on
the NLRA clearly took the contrary position. Id. at 1311.
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Hoffman Plastics majority. While those issues might have had some relevance to the decision, they should not have been allowed to displace
the one provision that spoke to the issue of remedy.72
As an early commentator of the courts’ treatment of the NLRA
observed of the Supreme Court’s Fansteel decision:
It converts the actual problem of the effect of misconduct as a qualification upon the Board’s remedial power to correct actual wrongs
by employers into a hypothetical problem of the employer’s punitive power to obtain redress for hypothetical wrongs by employees.
The Court’s approach omits from consideration the provocation to
the employees. It omits from consideration the effect of reinstatement upon the future of collective bargaining in the plant. It omits
from consideration, finally, the importance of discouraging unfair
labor practices which is the prime function of the Act. By imagining that there has been no strike it forecloses consideration of the
genuinely difficult question whether the employer has actually “discharged” the employees to redress their wrongs to him or whether
he is merely using those wrongs as a pretext to consummate his
wrongs to them.73
4. Recasting NLRA Rights and Purposes as Individual Rather than
Communal Rights
Of the NLRA, Justice Thurgood Marshall observed: “These are,
for the most part, collective rights, rights to act in concert with one’s
fellow employees; they are protected not for their own sake but as an
instrument of the national labor policy of minimizing industrial strife
‘by encouraging the practice and procedure of collective bargaining.’”74 Courts, however, have recast NLRA rights as individual rights,
a change that fundamentally affects the NLRA’s purposes and policies.75 Congress intended NLRA rights to be collective rights as a
means of promoting the well-being of society as a whole.76 Around the
72. Hoffman Plastics is not an aberration. The courts have limited NLRA rights in cases
involving strikes and refusals to acquiesce to employer bargaining demands. Ellen Dannin,
From Dictator Game to Ultimatum Game . . . and Back Again: The Judicial Impasse Amendments, 6
U. PA. J. LAB. & EMP. L. 241 (2004). The courts have also limited NLRA rights in cases
involving complaints about working conditions or employer actions. See Matthew W.
Finkin, Disloyalty! Does Jefferson Standard Stalk Still?, 28 BERKELEY J. EMP. & LAB. L. 541
(2007); see also Anne Marie Lofaso, Address at the Working Class Studies Association Conference (June 6, 2009). In each situation, the court labeled actions that were specifically
protected in the NLRA as disloyal and unprotected.
73. Hart & Prichard, supra note 51, at 1316.
74. Emporium Capwell Co. v. W. Addition Comm. Org., 420 U.S. 50, 62 (1975) (referring to NLRA § 7 rights of self-determination).
75. Scheunemann, supra note 65, at 145.
76. Ellen Dannin, NLRA Values, Labor Values, American Values, 26 BERKELEY J. EMP. &
LAB. L. 223, 230 (2005).
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time of the NLRA’s enactment, proposals were made that would have
meant NLRA rights were individual rights. One contemporary
observed:
Proceeding on the analogy between Board proceedings and a private employee-employer suit, this proposal ignores the fact that the
Board is a public body representing the interest of the public in
preventing employer practices which tend to promote industrial
strife. . . . Where industrial strife is most bitter, and both sides are
likely to be provoked into overstepping the bounds, these proposals withdraw the Act and throw the situation back to the anarchy of
the pre-Wagner Act period.77
C. Limiting and Limited Remedies
The extent to which Consolidated Edison’s dictum limiting remedies would hobble the NLRA was apparent immediately after that case
issued78 and made even clearer in Fansteel.79 Those early cases progressively transformed the NLRA into a law limited to specific weak remedies despite leaving unchanged the broad command that remedies
must effectuate the NLRA’s policies. Because Hoffman Plastics involved
discrimination against workers for their union activities, it was assumed that the only available remedies were (1) issuing a cease and
desist order that the employer not violate the NLRA in the future; (2)
ordering the employer to post a notice telling employees about their
NLRA rights for sixty days; (3) ordering reinstatement of illegally discharged employees; and (4) making illegally discharged employees
whole for their losses through back pay with interest but less any interim earnings.
Seeing NLRA remedies as limited in this way created a conundrum for the Hoffman Plastics majority. The employer would violate
immigration laws if it reinstated an illegally discharged employee, and
this option had been expressly eliminated by Sure-Tan, Inc. v. NLRB.80
Even sixty days of back pay would reward an employee who was illegally in the country and thus had no right to work. The Hoffman Plastics majority created a new remedial barrier. It treated as an employer
right and an employee obligation that the employee must work in order to decrease the employer’s back pay. Jose Castro could not legally
work in the United States. The Court majority saw his inability to work
77. Note, supra note 65, at 975.
78. Ralph M. Goldstein, Effectuating the Policies of the National Labor Relations Act, 20
B.U. L. REV. 74, 76–77 (1940).
79. See supra note 61 and accompanying text (discussing Consolidated Edison’s role in
the Fansteel decision).
80. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 903 (1984).
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as precluding any back pay remedy. Thus, the only remedies available
were the cease and desist order and a brief period of notice posting.
It is not that these two remedies have no value. A cease and desist
order provides the basis for contempt remedies if there are further
legal violations, and employees should know their rights under the
NLRA, even for the brief period of the notice posting. Employers are
not required to post notices about NLRA rights except as part of a
remedy for violations. As a result, this remedy is the only opportunity
for workers to read these rights at their workplace, as is required for
other state and federal workplace rights. The loss of the other two
remedies, however, removes incentives for a law-breaking employer to
comply with the law in the future. More important, this result falls far
short of the role Congress meant remedies to play in promoting
NLRA policies.
The discussion so far has examined longstanding problems in judicial decision making that have allowed judges to effectively rewrite
the NLRA. Merely identifying the problem, however, does nothing to
remedy it. In order to find an effective remedy, one must understand
why this decisional dynamic exists. In fact, as discussed in the next
Part, events around Fansteel provide us with evidence that mere identification of problems is not sufficient to change the dynamic. Contemporaneous commentators have carefully analyzed Fansteel and clearly
explained the problems created by the majority decision, including
predicting the outcome seen in Hoffman Plastics.
III.
Hoffman Plastics Was Predicted and Predictable
As already discussed, the effects of Fansteel have been to give employers rights that Congress denied them in enacting the NLRA to
impose double punishment on injured employees, while relieving
wrongdoing employers of remedial obligations, and to weaken incentives to comply with the law. Furthermore, it has endorsed decision
making based on speculation rather than the facts in the record; it has
allowed common law to trump the NLRA, even in cases where Congress had overruled the common law; it has demonstrated contempt
for the NLRB as an expert agency; and, finally, it has demonstrated a
predisposition to ensuring that employer rights trumped employee
rights under the NLRA. These effects were already apparent when
Fansteel was decided, and, yet, that knowledge was insufficient to stem
the practices that would lead to outcomes such as that in Hoffman
Plastics.
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For example, in 1939, Henry L. Hart, Jr. and Edward F. Pritchard,
Jr.—both major figures in law and politics at this time—observed that
even when employers engaged in egregious violations, the courts relieved them of remedial obligations if employees or unions had committed some act the judges saw as violating “good order.”81 Also in
1939, then Northwestern University School of Law Professor Nathaniel L. Nathanson and Northwestern law student Ellis Lyons warned of
Fansteel’s likely effects, including promoting the very practices the
NLRA was enacted to end:
The real danger of the Fansteel decision lies in the possibility that
some of the lower federal courts may construe it as authority for
preventing effective remedy of employer violations of the statute
whenever employees have been guilty of unlawful conduct. Such
an attitude would, in turn, have the unfortunate consequences of
suggesting to some employers the attractiveness of provoking violence in order to escape their own obligations. The likelihood of
such abuses might have been diminished had the Chef Justice been
less loathe to indicate the limitations of his doctrine and more willing to balance his condemnation of the strikers with equally
trenchant criticism of the employer. If, in ultimate effect, the decision is to advance rather than retard the cause of industrial peace,
which the Chief Justice intended to serve, the qualifications implicit, if not explicit, in the holding must be faithfully observed by
those who profess to follow it.82
Hart and Prichard urged the courts to be aware of the danger
that the 1939 Fansteel decision would cause judges to use irrelevant
common law analysis in place of a section 10(c) analysis:
Judgment on the one hand may strive to take into account all
relevant factors: the gravity of the misconduct, the extent of the
provocation, the attitude of the parties when the heat of the strike
has subsided, the effect of reinstatement upon the future of collective bargaining in the particular plant, the in terrorem value of denial of reinstatement in discouraging future misconduct by these
and other employees, the in terrorem value of granting reinstatement in discouraging future unfair labor practices by this and
other employers. . . . [J]udgment under Section 10(c) must be a disciplined judgment, guided and confined by the necessity of giving a reasoned
explanation of the relation between the grounds of judgment and the effectuation of the policies of the Act.83
Their warnings of the danger of unguided and undisciplined decision making based on speculation as to facts and motives foreshadowed the oral argument and majority decision in Hoffman Plastics.
81. Hart & Prichard, supra note 51, at 1304.
82. Nathanson & Lyons, supra note 51, at 770.
83. Hart & Prichard, supra note 51, at 1314–15 (emphasis added).
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Both erased the fact that the case was about the employer’s violating
the law by firing a worker for his union activities. On that point, Hart
and Prichard warned:
The other possible approach to “interpretation” . . . is one
which conceives of the problem solely in terms of the employer’s
“normal rights of redress”—his rights “to terminate the employeremployee relationship for reasons dissociated with the stoppage of
work because of unfair labor practices.” It is not enough to say in
criticism of this approach that it ignores many relevant factors in
the problem. It is necessary to say that it escapes meeting the real
problem altogether. What the Chief Justice and Mr. Justice Stone
are doing is to imagine first that there had been no strike [caused
by the employer’s illegal acts], to imagine next that the employees
had done what they did, and then to decide what would have been
the employer’s rights to discharge his employees in that imaginary
situation. . . . This reasoning would be satisfying except for the fact
that there was a strike, and there were unfair labor practices.84
Hart and Prichard observed that such a process “converts the actual problem of the effect of misconduct as a qualification upon the
Board’s remedial power to correct actual wrongs by employers into a
hypothetical problem of the employer’s punitive power to obtain redress for hypothetical wrongs by employees.”85 By losing focus on the
importance of the NLRA’s “prime function”—discouraging unfair labor practices—it foreclosed consideration of the genuinely difficult
question of whether the employer had actually “discharged” the employees to redress their wrongs to him or whether he merely used
those wrongs as a pretext to consummate his wrongs to them.86
Also in 1939, Edward Scheunemann, of counsel to the NLRB,
cautioned that the NLRA did not include power either to punish employees or to deny them its protections because they had committed
conduct that was unlawful under other laws.
Punishment for that conduct is well taken care of by other legislation, and was not intended to be governed by this act. The court
itself has recognized that fact in other decisions. Yet the effect of
the court’s decision here is to make the withdrawal of the protection of the Wagner Act another punishment for unlawful conduct
of employe[e]s and to reverse the Board for its failure to do
likewise.87
84.
85.
86.
87.
Id. at 1315.
Id. at 1314–16.
Id. at 1316.
Scheunemann, supra note 65, at 146 (internal footnote omitted).
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All these faults have continued to and through Hoffman Plastics.
The opinions speak of legal issues as if there were only bilateral options, as did the majority in Fansteel:
The Chief Justice’s opinion does not explain why a decision
upholding the order of reinstatement would have placed a premium on resort to force instead of legal remedies, but makes the
statement as if it were self-evident. . . . For clearly the strikers would
not have been in a better over-all position as a result of their conduct. They would have suffered the positive discouragement of the
state laws, which in this case were enforced (against the recalcitrant
strikers) avowedly without leniency by an avowedly hostile court.88
Judicial decision making of this sort violates the oaths federal
judges swear upon when entering their offices. Federal judges swear,
first, to “administer justice without respect to persons, and do equal
right to the poor and to the rich” and to “faithfully and impartially
discharge and perform all the duties . . . under the Constitution and
laws of the United States.”89 The second oath is one required of all
federal employees to “well and faithfully discharge the duties of the
office.”90
In both Fansteel and Hoffman Plastics it is difficult to understand
the majority’s apparent inability to engage in the basic process of adjudication. Both majority opinions fail to take into account that their
reversal of the NLRB effectively condoned the employer’s defiance of
the law. Their apparent inability to consider that the Fansteel strikers
and Jose Castro in Hoffman Plastics had already been punished, including time in jail for some of the strikers and heavy fines for contempt of
court when they refused to end their strike, imposes a double punishment on workers who dared to exercise their rights to join a union.
These outcomes, along with others already discussed, make it difficult
not to be cynical about the judges’ actions and not to see the decisions
as intended to ensure the employer wins, no matter how tortured the
reasoning to get to that point91—actions that violate the oaths federal
judges swear.
Why, then, if the deficiencies of the analysis used in Fansteel were
so obvious, did we see them used seventy years later in Hoffman Plastics
and in many cases between and since? That these defective processes
were understood and publicly discussed in the 1930s tells us more is
88. Hart & Prichard, supra note 51, at 1319.
89. 28 U.S.C. § 453 (2000).
90. 5 U.S.C. § 3331 (2006).
91. For a discussion of the Justices’ motives in Fansteel, see Hart & Prichard, supra note
51, at 1318–23.
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needed to promote enforcement of the NLRA than seeing and condemning these processes. The next part of this discussion examines
evidence of the larger social dynamics that have promoted the sort of
decision-making processes in Fansteel, Southern Steamship, Consolidated
Edison, Hoffman Plastics, and many other cases not discussed in this
Article.92
IV.
Confronting the Judicial Amendment Process
For workplace laws to operate as Congress intended, there must
be, first, an understanding of the judicial amendment process, and
second, the creation of strategies to check and even reverse it. Understanding requires noticing the decisional dynamic present in individual cases. Concern about the judicial amendment process and effects
on law were part of Congress’ deliberations as to the NLRA. Within
four years of the NLRA’s enactment, similar analyses and concerns
were expressed.
When the courts begin to substitute their own judgment for
that of the Board, or when they reverse the findings of the Board
in the absence of a clear abuse of discretion, they are indulging in
the kind of judicial intervention which . . . denies to administrative
agencies the very effectiveness they were designed to achieve. It
would be extremely unfortunate if this result should occur under
the Wagner Act, for a flexible administrative procedure—freed as
far as possible from the rigid and formal rules of courts of law—is
more important today in the field of labor disputes than in any
other field. Yet by means of unwarranted judicial intervention in
the findings and procedure of the Board the act could be rendered
totally ineffective.
. . . It is entirely possible that amendments may from time to time be
desirable, but, if so, they should come from the legislature and not from the
courts.93
The process of common law decision making and judicial interpretation is a constant of our system, and the dynamic of judicial
amendments of labor statutes existed during the late nineteenth century and through and past the NLRA’s enactment.94 What is difficult
to understand is why there was sufficient support to enact a series of
pro-labor laws, including the NLRA, yet, at the same time, a judiciary
that felt free to impose its own views on the law. The next sections
92. Other key cases involving judicial amendments are discussed in ATLESON, supra
note 5; DANNIN, supra note 45; GREGORY, supra note 5; Klare, supra note 5; James Gray
Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 MICH. L. REV. 518
(2004).
93. Scheunemann, supra note 65, at 148 (emphasis added).
94. See supra text accompanying notes 9–13.
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discuss forces that existed despite a general legal and social climate
that made labor law and work issues more salient. Countervailing
forces that weakened the NLRA and NLRB included opposition to
unions and collective bargaining encouraged by economically powerful groups in support of ultra-conservative programs and a divided
union movement. It is worth noting that, in some cases, similar forces
and climates exist today.
A. Opposition to the NLRA
The formidable power arrayed against the NLRA when it was introduced into Congress makes its survival, at any level, remarkable.
For example:
The roster of witnesses who opposed the passage of the Act in hearings before the Senate Committee on Education comprises a
Who’s Who of American industry, including representatives of the
United States Chamber of Commerce, American Iron and Steel Institute, American Mining Congress, American Newspaper Publishers Association, Institute of American Packers, Cotton Textile
Institute, and Automobile Manufacturers Association, to name but
a few.95
That opposition did not end with the NLRA’s enactment. Employers that had engaged in wholesale refusals to abide by the labor
law that preceded the NLRA96 continued to engage in massive resistance to the new law.97 Employer resistance included discriminating
against employees for union activity, fostering company-unions, maintaining espionage systems, spreading anti-union propaganda, moving
their location to avoid collective bargaining, employing professional
union-wreckers, surveilling union meetings and activities, fostering
anti-union movements,98 and distributing posters to employers promoting resistance to the NLRA.99 Activities such as these eventually
impelled the Fansteel employees’ sit-down strike.
Strategic employer resistance included passive and active refusals
to comply with the law and efforts to gut the new law through amendments.100 By 1937, when “the Wagner Act was declared constitutional,
out of 200 ‘cease and desist’ orders which had been issued against
95. Walter Gellhorn & Seymour L. Linfield, Politics and Labor Relations: An Appraisal of
Criticisms of NLRB Procedure, 39 COLUM. L. REV. 339, 339 n.2 (1939).
96. 1 NLRB ANN. REP. 4 (1936).
97. A.H. Raskin, Elysium Lost: The Wagner Act at Fifty, 38 STAN. L. REV. 945, 947 (1986).
98. Goldstein, supra note 78, at 75.
99. RICHARD C. CORTNER, THE WAGNER ACT CASES 96 (1964).
100. See, e.g., Note, supra note 65; see also JAMES A. GROSS, THE MAKING OF THE NATIONAL
LABOR RELATIONS BOARD: A STUDY IN ECONOMICS, POLITICS, AND THE LAW VOLUME I
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employers committing unfair labor practices, none had been complied with,”101 and, in its first two years, the American Liberty League
filed roughly one hundred injunction petitions as part of its antiNLRB campaign.102 Contemporary commentators noted:
The National Labor Relations Act was passed in the teeth of a
tenacious belief of employers that employees should not be permitted to bargain collectively through representatives of their own
choice. On the very day following the National Labor Relations
Board’s first session fifty-eight legal luminaries, acting under the
aegis of the American Liberty League, declared the Act to be unconstitutional; their pronouncement served as a model brief for
the scores of injunction suits which practically brought to a standstill the Board’s work during its first two years.103
Members of the American Liberty League included heads of major companies and other American leaders.104 Chief financial support
for the American Liberty League came from J. Howard Pew; members
of the DuPont family; George M. Moffett, president of the Corn Products Refining Co.; Alfred P. Sloan, president and chairman of General
Motors; E. T. Weir, National Steel chairman; John Pratt, General Motors vice president and member of the General Motors board of directors; and famous supporters, such as Hal Roach, movie director and
producer.105
Employer resistance was reinforced by the issuance only a few
weeks after the signing of the law of a manifesto by the National
Lawyers Committee of the American Liberty League, a stronghold
of anti-New Deal sentiment lavishly underwritten by the business
(1933–1937) 204–11 (1974) (internal footnote omitted) (recounting federal court injunctions halting NLRB proceedings).
101. F.L. Watson, Jr., Note, Amending the National Labor Relations Act to Benefit Both Employers and Employees, 24 VA. L. REV. 670, 670 (1938).
102. See generally CORTNER, supra note 99, at 93–96, 98–105 (explaining the obstacles
that the NLRB faced in litigation). James Gross puts the total injunctions at 103. GROSS,
supra note 100, at 206; 1 NLRB ANN. REP., supra note 96, at 46–50, 56; Joseph Kutten, Note,
Conflict of Jurisdiction Between Federal District Courts and the National Labor Relations Board, 23
WASH. U. L.Q. 425 (1938) (examining problems attendant to the proliferation of suits
enjoining NLRB hearings); Harry B. Merican, Note, The Supreme Court and the National
Labor Relations Act, 26 GEO. L.J. 412 (1938) (discussing early Supreme Court treatment of
the NLRA); Seymour S. Mintz, Editorial Notes, Suits to Enjoin the National Labor Relations
Board, 4 GEO. WASH. L. REV. 391 (1936).
103. Gellhorn & Linfield, supra note 95, at 339–40; Brief of the NLR Act, 3 U.S.L.W. 1, 8
(1935) (summary of American Liberty League brief).
104. For a history of the American Liberty League, see GEORGE WOLFSKILL, THE REVOLT OF THE CONSERVATIVES: A HISTORY OF THE AMERICAN LIBERTY LEAGUE, 1934–1940
(1962).
105. KIM PHILLIPS-FEIN, INVISIBLE HANDS: THE MAKING OF THE CONSERVATIVE MOVEMENT
FROM THE NEW DEAL TO REAGAN 3–34 (2009); see also PETER H. IRONS, THE NEW DEAL LAWYERS 80–82, 98 (1982).
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community. The league’s lawyers pronounced the Wagner Act unconstitutional and strongly implied that the right course for employers was to defy it and count on the courts to uphold their
challenge of its validity.106
The NLRB’s first annual report published in 1936 described the
immediate impact of this anti-NLRA campaign.
During its first month, and before the Board had opportunity
even to announce its procedure, an incident occurred which was to
stimulate injunction suits against the Board, and even to provide a
sample brief for those wishing to attack the act. This was the publication by the National Lawyers Committee of the American Liberty
League, on September 5, 1935, of a printed assault on the constitutionality of the act. This document, widely publicized and distributed throughout the country immediately upon its issuance, did
not present the arguments in an impartial manner for the use of
attorneys. It was not a review of the cases which might be urged for
and against the statute. It was not a brief in any case in court nor
was it an opinion for any client involved in any case pending.
Under the circumstances it can be regarded only as a deliberate
and concerted effort by a large group of well-known lawyers to undermine public confidence in the statute, to discourage compliance with it, to assist attorneys generally in attacks on the statute,
and perhaps to influence the courts.107
The American Liberty League’s campaign continued for over a
year. It would be difficult to assess the exact impact of this campaign
of employer resistance to the NLRB just as the agency was setting up
operations.108 Sources of opposition were not always clear. For example, the district judge assigned to hear an important early injunction
case that was the first ruling on the NLRA’s constitutionality—Judge
Merrill E. Otis of the Federal District Court at Kansas City, Missouri—
was himself a member of the American Liberty League109 and, yet,
failed to recuse himself or reveal this information.
For nearly a year the members of the [NLRB] litigation staff
engaged eminent counsel for industry before the Federal district
106. Raskin, supra note 97, at 947; see also Kutten, supra note 102, at 425 (explaining
that suits for injunctive relief often were paired with requests for declaratory judgment that
the Wagner Act was unconstitutional).
107. 1 NLRB ANN. REP., supra note 96, at 46–47; see also IRONS, supra note 105, at
244–45 (discussing impact of brief).
108. Gellhorn & Linfield, supra note 95, at 339–41(withholding discussion of early impact of employer resistance); see also GROSS, supra note 100, at 204–11(detailing federal
court injunctions halting NLRB proceedings); Kutten, supra note 102, at 425 (examining
problems attendant to the proliferation of suits enjoining NLRB hearings); Mintz, supra
note 102.
109. IRONS, supra note 105, at 246; Labor Act in the Courts, 3 U.S.L.W. 1, 19 (1935);
Labor: Federal Regulation—National Labor Relations Act—Constitutionality—Commerce Power of
Commerce—Collective Bargaining—Flour Mill, 3 U.S.L.W. 10–11 (1935).
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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courts of every important industrial center in the country, hoping
by the vigor of their counter attacks to discourage still more employers from bringing on what might very well have been a flood of
suits too overpowering for a small staff to meet. Relief from this
onerous responsibility came gradually, as it began to appear that
the majority of both Federal district courts and circuit courts of
appeals would sustain the Board’s position that, under the act, the
proper remedy for alleged irreparable damage by reason of Board
activities does not lie in injunction proceedings but rather through
review in an appropriate circuit court of appeals.110
Active opposition of this sort only began to dissipate when the
Supreme Court upheld the constitutionality of the NLRA,111 though,
as discussed earlier, efforts to amend the NLRA through legislation
and court actions continued.112 In short, although a team of smart
lawyers and economists had been assembled to meet the challenges of
creating and preserving the NLRA when attacks on its constitutionality would be taken up in the regular course of investigating and trying
NLRB cases,113 they were forced, instead, to spend those critical early
years fighting injunctions brought to prevent even beginning the first
stage of investigating claims of a violation. That fight involved attacks
by well-funded groups that were implacably opposed to unions and
collective bargaining.
B. Union Antipathy to the NLRA
Unions played an important role in the enactment of the NLRA.
However, that support was not wholehearted. As Leon Keyserling, one
of the key people behind the enactment of the NLRA recalled:
To be sure, Senator Wagner’s efforts to obtain enactment of
his bill had powerful allies. The labor organizations brought strong
and effective support to bear, considering that their membership
was only about 3 million at the time. However, some of the older
types of craft unions, fearful of the effect of some of the provisions
of the bill upon the structure of their organizations, did not lend it
their support and may even have worked against it. At one critical
stage in the battle on the House side, Chairman William J. Connery, Jr. of the House Labor Committee came to my office to report that the head of one powerful union had given him the jitters
about the bill.114
110. 1 NLRB ANN. REP., supra note 96, at 46.
111. Raskin, supra note 97, at 948.
112. See supra Part IV.A.
113. See David Ziskind, The Use of Economic Data in Labor Cases, 6 U. CHI. L. REV. 607
(1939); see also CORTNER, supra note 99 (describing the early history of the NLRB).
114. Leon H. Keyserling, The Wagner Act: Its Origin and Current Significance, 29 GEO.
WASH. L. REV. 199, 207 (1960).
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Indeed, the American Liberty League attack might have had less
impact had the American union movement supported the new law
and agency they had lobbied for. Unfortunately, the union movement
“split into two warring camps in the fall of 1935 and reduced the support which a unified labor movement would otherwise have supplied
it.”115 The American Federation of Labor (“AFL”) “turned much of its
wrath on the Labor Board when the Board accepted election petitions
from [Congress of Industrial Organizations (“CIO”)] unions on industrial lines, instead of yielding to the AFL view that the demarcation
lines of craft unions prevail.”116 Disputes between craft unions—allied
formally or informally with the new CIO and industrial unions and
allied with the AFL as to the appropriate unit for representation—
broke out immediately.117 Bargaining unit issues led to a firestorm of
AFL attacks on NLRB as a “kangaroo court” with a CIO bias and by
the CIO for NLRB pro-AFL bias.118 In addition to fighting over the
unit in which a union election would be held,119 these inter-union
battles included fighting for NLRA amendments that would put the
other organization at a disadvantage.120
As a result, the NLRB was seen more as terrain on which to conduct battle than as support in the larger goal of increasing union
membership.121 The NLRB strove to be neutral but was, nonetheless,
seen by the contesting unions as choosing sides.122 As one contemporaneous observer put it: “In these disputes the Board is in an unenvi115. CORTNER, supra note 99, at 90; see also GROSS, supra note 100, 244–53 (describing
the conflict within the union movement).
116. Raskin, supra note 97, at 947; see also Note, Effect on the A.F. of L.-C.I O. Controversy of
the Determination of Appropriate Bargaining Units Under the National Labor Relations Act, 47 Yale
L.J. 122 (1937).
117. William T. Little, Labor Law—Appropriate Unit for Collective Bargaining, 12 WIS. L.
REV. 367, 367 (1937). The AFL had been ambivalent about the NLRA’s inclusion of units
for collective bargaining in addition to crafts, but in the end, did support the NLRA’s
enactment. Kenneth Casebeer, Drafting Wagner’s Act: Leon Keyserling and the Precommittee
Drafts of the Labor Disputes Act and the National Labor Relation Act, 11 INDUS. REL. L.J. 73, 90
(1989).
118. Julius Cohen, The “Appropriate Unit” Under the National Labor Relations Act, 39
COLUM. L. REV. 1110, 1110 n.3 (1936).
119. See Note, supra note 116.
120. Note, supra note 65, at 980–81. The author referred to this as “a period marked by
bitter interunion conflict.” Id. at 982. Problems with union support for the NLRA began
even before it had become law. Keyserling, supra note 114, at 207.
121. CORTNER, supra note 99, at 90–92 (1964); Raskin, supra note 97, at 947.
122. See generally Cohen, supra note 118 (describing the conflict over how bargaining
units were defined by the NLRB); see also Little, supra note 117, 367–69 (providing an
overview of cases and issues in early cases).
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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able position, for any decision it renders must necessarily aid either of
the rival organizations . . . .”123
C. The Effects of Employer Opposition and Union Infighting
Workers impatient for the rights promised under the new law
were soon involved in a wave of strikes that swept the country. These
included sit-down strikes124 that, by involving workers willing to occupy their place of work in defiance of their employer’s ownership
rights raised the level of emotion. Indeed, the Fansteel sit-down strikers “claimed that they had rightfully occupied the factories in self-defense of their right to organize, protected under the recently enacted
[NLRA].”125
Often forgotten today is that the “number of union members in
this country went from three million in 1935 to almost 15 million in
1947.”126 A five-fold increase in such a short time is remarkable, and
even more so given that World War II meant that potential union
members were in the military, although women and others—also potential union members—entered the workforce for the first time.
Given the power of the anti-NLRA campaigns, it is surprising that employer resistance declined markedly in the period immediately after
the NLRA was held constitutional. Early Court successes led employers to prefer to settle anti-union discrimination cases, even when they
involved very large amounts of back pay. The cases involved “amounts
ranging from $10,000 to $51,000” and were settled “without even going to hearing before the trial examiner. . . . Such settlements totaled
$131,083.85 in 1938 for the Board’s Second Region (New York)
alone.”127 That was, of course, before Fansteel and other cases involving judicial amendments were issued. In other words, in that period,
the courts sent powerful messages about rights and respect for the
rule of law with each case decided. This turnaround by employers is
even more dramatic when one considers the aggressive steps taken by
the American Liberty League in 1935 and 1936 to destroy the NLRA.
All these complex forces still exist. As discussed earlier, workplace
laws—old and new—continue to be weakened as a result of judicial
123. Note, supra note 116, at 124.
124. Woods & Wheatley, supra note 29, at 846–62 (quoting from state Fansteel cases).
125. Pope, supra note 92, at 20; see also ATLESON, supra note 5, at 44–66.
126. Abner J. Mikva, The Changing Role of the Wagner Act in the American Labor Movement,
38 STAN. L. REV. 1123, 1126 n.13 (1986). For a detailed discussion of that period, see JAMES
B. ATLESON, LABOR AND THE WARTIME STATE: LABOR RELATIONS AND LAW DURING WORLD
WAR II (1998).
127. Ward, supra note 68, at 1152 n.6.
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amendments. It is worth considering, however, whether it is possible
to end this erosion of workplace rights.
V.
What, Then, Is to Be Done?
The evidence is clear that the question every generation faces is:
How do we preserve and enforce the rights we have gained through
legislation? Just a few years after the NLRA was enacted, Osmond
Fraenkel concluded that the processes that lead to judicial amendments would persist; however, he contended, it was possible to take
steps to improve the administration of justice. He said:
Yet it remains inevitable that there should be judges who set
themselves up as society’s mentors and consider themselves entitled to determine what shall be legal and to pronounce what they
believe wise. These men, with the most conscientious motives, destroy statutes either by declaring them unconstitutional as against
“natural law,” or by emasculating them through interpretation
when higher authority has barred the other way. Since they exemplify a persistent type of human thinking and feeling, and since
judges are seldom chosen for their psychological qualities, it is
foolish to hope that we shall ever be without them.
Therefore, the reformer must be prepared to progress slowly.
Often, indeed, he will find that judges send him backward half a
pace for every step the legislatures send him ahead. Yet, there is
forward motion as anyone can testify who was familiar with the
state of labor law a brief quarter of a century ago. With persistence
and skill we should make even greater strides in this field in the
near future. Especially will this be so if the fates give the country
judges who are men of good will.128
It is likely that, had there been no Fansteel, Southern Steamship, or
Hoffman Plastics, employee rights in the United States would not be
much different than their present form. There are several impetuses
that support this conclusion. First, there is the real problem of how to
deal with employee misconduct so serious that an employer could not
be expected to retain the employee and that such a situation will occasionally intersect with conduct protected by the NLRA. Second, employee acts of union support, employee mutual aid or protection, and
other concerted actions are unlikely to be seen by employers or courts
as positive characteristics in employees; rather, employers and courts
are more likely to see them as disloyal and as making an employee
unfit for employment. Third, employers and courts are likely to regard any employee misconduct as a serious problem. Fourth, our common law tradition views a job as the employer’s possession and gives
128. Fraenkel, supra note 7, at 606.
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EQUALITY AT LAST FOR IMMIGRANT WORKERS?
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employees a status not exactly that of trespassers, but certainly not of
having property or other rights in a job, absent tenure. Employers are
therefore normally given wide discretion to decide whom they
employ.
These views are deeply held in our system and color the way law is
interpreted.
If it is correct that these viewpoints are held—to a greater or
lesser degree—by employers and judges, then we ignore them at our
peril. Surely Congress did not intend that the NLRA’s protections
could be withheld from employees solely because they had engaged in
the very actions protected by the NLRA. It is likely that Congress did
intend that the NLRA’s protections could be withheld for serious actions forbidden by law and affecting the employee’s ability to do the
job—but only if those serious actions were the actual reason for terminating the employment, as opposed to a convenient excuse for the
employer to violate the law without penalty. The latter paradigm covers pretext cases, where the employer’s real motive is an illegal one.
We know that Congress was aware of these issues when the NLRA
was drafted. It might have been helpful had it addressed them more
explicitly, since we can be confident that these issues will arise with
some frequency. On the other hand, the big cases in this area, including Fansteel, Southern Steamship, and Hoffman Plastics are all actually pretext cases with facts that should have made the decisions easy.
However, we must take seriously the question: If these were actually
easy cases, why was it so difficult for the majorities in each case to
make these distinctions?
Some parts of the answer are clear. The restricted NLRA remedies available under Consolidated Edison make remedies a subtractive
process of list making, rather than a process of enforcing the broad
command of section 10(c). The reasoning of the courts also confused
issues of legal violations with issues of ordering the appropriate remedy for the violation found. However, these solutions were so obvious
and easy that they tell us the real problems lie elsewhere.
To retain laws Congress enacted, we must be prepared to identify
and go where the real problems lie and to have a plan to address
them. That plan must include a process that identifies areas where
problems are likely to arise. It must also distinguish between the benign evolutionary operation of common law statutory interpretation
and the rewriting of law under the guise of statutory interpretation.
Certainly, far better than this legal treadmill of legislation, judicial
428
UNIVERSITY OF SAN FRANCISCO LAW REVIEW
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amendment, and, perhaps, re-legislation of the original law would be
to change the dynamic that now exists.
One such strategy is mapped out in Taking Back the Workers’ Law
—How to Fight the Assault on Labor Rights.129 It was used with great success by the NAACP Legal Defense Fund, starting in the 1930s with
cases that led to the integration of southern law schools.130 It has been
used more recently and successfully by the anti-union National Right
to Work Legal Defense Fund (“NRTW-LDF”). The NRTW-LDF says:
In 1971 in a confidential memorandum, Lewis F. Powell, Jr.,
who later became a Justice of the U.S. Supreme Court, told the
U.S. Chamber of Commerce:
“American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government.”
Three years before Justice Powell’s warning, we realized how
important court action is in our battle to free the working people
of America from compulsory unionism and established the National Right to Work Legal Defense Foundation.
Our Foundation’s program is modeled after the successful
program of the NAACP Legal Defense Fund. In the early 1950’s,
when the NAACP was stalled in Congress, they filed a series of coordinated legal actions, and by taking those with the best potential
to the U.S. Supreme Court, they were able to change the law.
That’s exactly what we are doing with Right to Work issues
through the Foundation’s program.131
The successes of both the NAACP Legal Defense Fund and the
NRTW-LDF strategies show that such a strategy focused on enforcing
the NLRA is a viable option. Both of those groups used a two-pronged
campaign. One was a litigation strategy that used a group of knowledgeable, thoughtful, and creative people to formulate the outlines of
that strategy, to adapt it to meet changed circumstances, and to execute the strategy.
However, neither relied only on litigation, and litigation alone is
not sufficient to stem and reverse the erosion of NLRA rights. Both
also relied on a values campaign. Protecting and expanding worker
rights requires transforming our country’s values from those of individualism to the communal and democratic values of justice and social
and industrial democracy, values that are embodied in the NLRA.132
129. See generally DANNIN, supra note 45.
130. See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY (Vintage 2004).
131. NRTW-LDF, Foundation Legal Strategy & Progress, http://www.nrtw.org/b/flsap.htm (last visited Oct. 29, 2009).
132. See generally Dannin, supra note 76.
Fall 2009]
EQUALITY AT LAST FOR IMMIGRANT WORKERS?
429
Both international and domestic law, including this country’s founding documents, are important sources for improving worker rights,133
because they are legal documents that resonate with this country’s
traditional values. Other laws also endorse the rights of workers and
should be used to support the litigation and values campaign. These
include the Clayton Antitrust Act, which declares: “[t]he labor of a
human being is not a commodity or article of commerce,”134 and the
Norris-LaGuardia Act, which supports worker solidarity and also endorses the rights of workers.135 Other documents include the U.S.
Constitution, which supports freedom of speech and association,136
and the Declaration of Independence: “We hold these truths to be
self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are
life, liberty and the pursuit of happiness.”137
We must also remember that the NLRA is a pro-union law whose
policy statement says it promotes worker collective power and collective bargaining in order to preserve our economy and, thus, our
democracy.
When critics accuse the labor laws and the NLRB of being prounion, as they frequently do, it is a sign that the Act is performing
as intended and that the Board is following its mandate. The Act is
supposed to be biased; no one feared that in a state of nature John
Rockefeller would be overwhelmed by individual workers. When
the Board or the courts profess to adopt a more neutral approach
to interpreting the Act, one that does not favor either side, they fail
to acknowledge the balance struck by the law. The sponsors believed that without some statutory advantage, workers are at a
disadvantage.138
Many attribute the stagnation that led to a declining percentage
of union members was the passage of the Taft-Hartley Act.139 While
Taft-Hartley has long been a target of union anger and blamed for
labor’s woes,140 the less visible judicial amendments have been far
133. For more details, see DANNIN, supra note 45, at 117–27, and Dannin, supra note
76.
134. Clayton Act, 15 U.S.C. § 17 (2006).
135. Norris-LaGuardia Act, 29 U.S.C. § 102 (2006).
136. Staughton Lynd, Communal Rights, 62 TEX. L. REV. 1417, 1430–35 (1984). Lynd
also says that First Amendment rights are of “the people” and not of the individual. Id. at
1432.
137. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
138. Mikva, supra note 126, at 1126–27.
139. Labor-Management Relations Act, ch. 120, 61 Stat. 136 (codified as amended at
29 U.S.C. § 141 (1947)).
140. See Boyd Leedom, Introduction, 29 GEO. WASH. L. REV. 191, 197 (1960).
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UNIVERSITY OF SAN FRANCISCO LAW REVIEW
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more important in repealing worker rights. Judge Abner Mikva has
made the following too often-forgotten observation:
Taft-Hartley did not repeal the Wagner Act, it amended it. It did not
remove protections given to labor, it simply outlawed unfair tactics
by both sides. The basic protections—the rights to organize, to bargain collectively, and to strike—were largely untouched. Taft-Hartley aimed to equalize bargaining power, not to return workers to a
primal state of vulnerability.141
Conclusion
Ultimately, Fansteel is a case of judicial amendments,142 as is Hoffman Plastics, which builds on it. In both cases, the Court dynamic was
to maximize the weight it gave to employee wrongdoing, thus ignoring employer law breaking. Glaringly absent from both decisions was
any consideration as to how such an outcome promoted the NLRA’s
policies and conformed with the NLRA itself. The complexities present in Fansteel and Hoffman Plastics illustrate the challenges that labor
and its allies face. Indeed, the NLRA is a law that has never been in
sync with this society’s dominant values. To have been effective, therefore, it needed—and still needs—the wholehearted support of unions
and those who support communal values and fair treatment of workers. Even three-quarters of a century later, it still needs that support if
the communal institutions of unions and collective bargaining are to
survive and thrive and if the rights and protections Congress has given
workers are to be enforced. Only then can we have equality in fair
treatment for all workers rather than equality in mistreatment.
141. Mikva, supra note 126, at 1127; see also Leedom, supra note 140, at 191–92 (explaining that the Labor-Management Reporting and Disclosure Act did not repeal the TaftHartley Act).
142. Nathanson & Lyons, supra note 51 (examining the Supreme Court’s interpretation of the National Labor Relations Act as applied to Fansteel); Scheunemann, supra note
65, 144–48.
The Borders of Collective
Representation: Comparing the Rights
of Undocumented Workers to
Organize Under United States and
International Labor Standards
By CHRISTOPHER DAVID RUIZ CAMERON*
Introduction
IN THE UNITED STATES, THE BORDERS limiting a broad spec-
trum of workers’ rights are established by the answer to a deceptively
simple question: who counts as an “employee”?1 An “employee” has
recourse to the machinery of the legal system if she is denied the minimum wage;2 equal treatment based on age,3 race, color, religion, or
sex;4 and the right to organize a union.5 A non-“employee” has no
* Irving R. Buchalter Professor of Law 2009–2010, Southwestern Law School, Los
Angeles, California. Earlier versions of this Article were presented to the Joint Annual
Meetings of the Law and Society Association and the Canadian Law and Society
Association, Montreal, Quebec, Canada, in June 2008, and to the University of San
Francisco School of Law’s Symposium on the Evolving Definition of the Immigrant
Worker: The Intersection Between Employment, Labor, and Human Rights Law, San
Francisco, California, in February 2009. Valuable research assistance was provided by Gary
Dennis (J.D. Class of 2010) and Anasheh Akopian (J.D. Class of 2010) of Southwestern Law
School. Insightful commentary, constructive encouragement, or both, was offered by Kevin
Johnson, Jim Pope, Maria Ontiveros, Judy Fudge, Ron McCallum, Richard Mitchell, and
Nick Connon, and by members of The Labor Law Group—especially Ken Dau-Schmidt,
Marty Malin, Roberto Corrada, and Catherine Fisk—who helped me conceive and draft a
chapter for our textbook discussing some of the issues raised herein. Any remaining errors
are mine alone.
1. See KENNETH G. DAU-SCHMIDT, MARTIN H. MALIN, ROBERTO L. CORRADA, CHRISTOPHER DAVID RUIZ CAMERON & CATHERINE L. FISK, LABOR LAW IN THE CONTEMPORARY WORKPLACE (2009).
2. See Fair Labor Standards Act of 1938, 29 U.S.C. § 203(e) (2006).
3. See Age Discrimination in Employment Act of 1967, § 11(f), 29 U.S.C. §§ 621,
630(f) (2006).
4. See Civil Rights Act of 1964, tit. VII, § 701(f), 42 U.S.C. §§ 2000e-3, 2000e(f)
(2006).
5. See National Labor Relations Act, § 2(3), 29 U.S.C. §§ 151, 152(3) (2006) [hereinafter NLRA].
431
432
UNIVERSITY OF SAN FRANCISCO LAW REVIEW
[Vol. 44
legal recourse. Whereas the former is recognized as a person with
standing to invoke the protection of the law, the latter is not recognized at all. She is a nobody. And like all nobodies, she is left to fend
for herself.
The National Labor Relations Act (“NLRA”) is the basic law in
the United States guaranteeing the right of working people to organize unions. Under the NLRA, there are at least two methods by which
a worker can be excluded from the definition of “employee.” The first
is by statute; for sound or unsound policy reasons, the legislature may
allow some workers to play the game while requiring others to sit on
the bench. The second is by interpretation; either the administrative
agency, or the courts charged with applying the statute in question,
can choose to include certain workers within the definition of “employee” but exclude others.
An important example of the interpretation method of exclusion
is found in Hoffman Plastic Compounds, Inc. v. NLRB (“Hoffman Plastics”),6 decided by the U.S. Supreme Court in 2002. In Hoffman Plastics, an undocumented worker named Jose Castro was fired in
retaliation for distributing union authorization cards. Although this
act of retaliation was an undisputed violation of section 8(a)(3) of the
NLRA,7 the Court found Castro was not entitled to collect back pay.
Back pay is a standard item on the menu of make-whole remedies
typically served up by the National Labor Relations Board (“NLRB”)
in retaliation cases. According to the majority,8 however, awarding
back pay would subvert or trivialize federal immigration policy by rewarding an undocumented laborer for violating the extensive “employment verification system” codified by the Immigration Reform
and Control Act (“IRCA”).9
As a result, Hoffman Plastics effectively, if not in so many words,
excluded the undocumented worker from the statutory definition of
“employee” under the NLRA.
The purpose of this Article is not to beat the Hoffman Plastics decision like some piñata; the overwhelming weight of scholarly commentary has already done that job.10 Besides, in 2003, the International
6. 535 U.S. 137 (2002).
7. NLRA, § 8(a)(3), 29 U.S.C. § 158(a)(3) (2006).
8. Hoffman Plastics Compounds, Inc., 535 U.S. at 150.
9. Immigration Reform and Control Act of 1986, § 101(a)(1), 8 U.S.C. § 1324a(1)
(1994).
10. Hoffman Plastics has generated substantial commentary. Disagreeing with me, most
commentators worry that the decision will preclude workers from vindicating their rights
under other employment law regimes. See Robert I. Correales, Did Hoffman Plastic Com-
Fall 2009]
THE BORDERS OF COLLECTIVE REPRESENTATION
433
Labour Organization’s Committee on Freedom of Association seemed
to settle the matter under international law by finding that the Hoffman Plastics decision left the United States with insufficient remedies
to ensure that undocumented workers are protected against antiunion discrimination.11
Instead, the purpose of this Article is to explore whether the Hoffman Plastics way is the only way. The question is this: do international
legal regimes approach the collective bargaining rights of transborder
workers, like Jose Castro, in the same way as the U.S. Supreme
Court?12 Put another way, in any other context, are the labor rights of
documented or “regular” workers treated differently in the United
pounds, Inc. Produce Disposable Workers?, 14 BERKELEY LA RAZA L.J. 103 (2003); Ruben J.
Garcia, Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Law, 36 U. MICH. J.L. REFORM. 737 (2003); Marı́a Pabón López, The Place
of the Undocumented Worker in the United States Legal System After Hoffman Plastics: An Assessment and Comparison with Argentina’s Legal System, 15 IND. INT’L & COMP. L. REV. 301 (2005);
Maria L. Ontiveros, Immigrant Workers Rights in a Post-Hoffman World—Organizing Around the
Thirteenth Amendment, 18 GEO. IMMIGR. L.J. 651 (2005). One scholar raised fears about the
effects a Hoffman Plastics-type decision would have even before Hoffman Plastics was decided. See 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, 369 n.98 (2001). But I
predicted—so far accurately—that the decision’s legal impact on undocumented workers
would “be confined mostly to the ever shrinking world of the National Labor Relations
Act.” Christopher David Ruiz Cameron, Borderline Decisions: Hoffman Plastic Compounds,
the New Bracero Program, and the Supreme Court’s Role in Making Federal Labor Policy, 51 UCLA
L. REV. 1, 5 (2003).
The legal status of undocumented workers in the United States continues to generate
substantial scholarly interest. See, e.g., Keith Cunningham-Parmeter, Redefining the Rights of
Undocumented Workers, 58 AM. U.L. REV. 1361 (2009) (constructing a framework for evaluating the spectrum of undocumented workers’ rights, from rights that are acknowledged to
those that are disputed); Kari L. Griffith, U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law, 31 COMP. LAB. L. & POL’Y J. 125 (2009) (providing
an overview of the intersection between the federal immigration laws and various employment regimes, including the Fair Labor Standards Act and the Migrant Seasonal Agricultural Worker Protection Act).
11. Complaints Against the Government of the United States Presented by the American Federation of Labor and the Congress of Industrial Organizations (“AFL-CIO”) and
the Confederation of Mexican Workers (“CTM”), Report No. 332, Case No. 2227 (Oct. 18,
2002), available at http://www.ilo.org/ilolex/english/caseframeE.htm (follow “by case”
hyperlink; then follow “2200” hyperlink; then follow “2227 United States” hyperlink)
[hereinafter Complaints Against the Government].
12. The argument that our courts should use international labor standards to interpret domestic statutes—a position that can be controversial in this country unless the
United States has agreed to be bound by such standards—is beyond the scope of this Article. Instead, the focus here is on America’s exceptionalism as demonstrated by the use of
the term “employee” to set limits on the protections granted by national labor policy. The
United States is not the only nation ambivalent about extending basic labor rights to undocumented workers. See, e.g., Graeme Orr, Unauthorised Workers: Labouring Beneath the
Law?, in LABOUR LAW AND LABOUR MARKET REGULATION (Christopher Arup, Peter Gahan,
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UNIVERSITY OF SAN FRANCISCO LAW REVIEW
[Vol. 44
States from the labor rights of undocumented or “irregular” workers?
The answer, as we shall see, is no.13
I.
Who Counts as an “Employee” Under the NLRA?
Section 2(3) of the NLRA defines “employee” as follows:
The term “employee” shall include any employee, and shall not be
limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor practice . . . but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at
his home, or any individual employed by his parent or spouse, or
any individual having the status of an independent contractor, or
John Howe, Richard Johnstone, Richard Mitchell & Anthony O’Donnell eds., 2006) (examining ambivalence in Australia).
13. Even in the United States, the logic of Hoffman Plastics has its limits. In at least five
cases decided under the NLRA, Hoffman Plastics has been all but limited to its facts.
In one NLRB decision, the administrative law judge found that seven undocumented
Latino bakery workers were entitled to back pay because there was no evidence they had
engaged in fraud or criminal activity when their employer knowingly and illegally hired
them. Mezonos Maven Bakery, Inc., Case No. 29-CA-25476, 2006 WL 3196754 (N.L.R.B.
Div. of Judges 2005). In reviewing another NLRB decision, the District of Columbia Circuit
set forth that a kosher meat wholesaler had a duty to bargain with a union elected by a
bargaining unit in which half the workers either lacked social security numbers or had
numbers that did not match government records, which suggested the workers were undocumented. Agri Processor Co., 347 N.L.R.B. 1200 (2006), enforced, 514 F.3d 1 (D.C. Cir.
2008), cert. denied, 129 S. Ct. 594 (2008). In an Alabama case, the NLRB held that sections
8(a)(3) and (4) of the NLRA were violated when four undocumented Latino workers were
discharged for voting in a representation election, and rejected the employer’s contention
that the workers were ineligible to vote in the first place. Concrete Form Walls, Inc., 346
N.L.R.B. 831 (2006), enforced, 225 F. App’x. 837 (11th Cir. 2007).
In one California case, a majority of the NLRB left these precedents undisturbed, but
refused to find on the facts that the suspension and later discharge of a Latina worker due
to an expired work permit was in retaliation for her service as a union observer during a
representation election. Int’l Baking Co. & Earthgrains, 348 N.L.R.B. 76 (2006).
In another California case, the Ninth Circuit held that the NLRB was authorized to
enforce a consent decree calling for a roofing company to reinstate and pay back wages to
twenty workers fired in violation of the NLRA, even though many of them were undocumented. NLRB v. C & C Roofing Supply, Inc., 569 F.3d 1096 (9th Cir. 2009).
Beyond the NLRA, virtually every decision reported by a court confronted with the
possibility of using Hoffman Plastics to restrict the remedies or rights of undocumented
workers under other employment regimes has refused to do so. In at least forty-four decisions reported after Hoffman Plastics, courts either refused to follow, declined to extend,
distinguished, or recognized the limits of the holding in Hoffman Plastics. The reported
decisions include state and federal claims for employment discrimination, minimum
wages, prevailing wages, unemployment compensation, workers’ compensation, and workplace safety. In some cases, they also include employer demands for discovery of the plaintiffs’ immigration status, which were generally denied. For some examples of the forty-four
cases, see infra note 90.
Fall 2009]
THE BORDERS OF COLLECTIVE REPRESENTATION
435
any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act . . . .14
By its express terms, section 2(3) is broad. It defines “employee”
as “any” employee, and indicates the definition “shall not be limited to
the employees of a particular employer, unless this subchapter explicitly states otherwise.”15 The statute does go on to exclude from the
definition of “employee” a short but substantial list of various categories of worker. Though undocumented employees are not on this list,
the listed exclusions have the effect of removing huge segments of the
U.S. workforce from the protections offered under the NLRA.16 Indicative of their continuing importance, many of these exclusions continue to be the subject of much-noticed litigation.
For example, the exclusion of supervisors was arguably expanded
by Oakwood Healthcare, Inc.,17 a 2006 decision by the NLRB. Interpreting sections 2(2) and 2(11) of the NLRA, the NLRB held that permanent charge nurses who direct the work of other nurses as a regular
and substantial part of their duties are supervisors who are excluded
from the protections of the NLRA.18 Advocates for organized labor
complained the decision would transform potentially millions of rankand-file employees into statutory supervisors. Of course, the question
of who must be excluded as a supervisor remains of continuing importance due to the inevitable conflicts arising between a statute drafted
to address the hierarchical industrial workplace of the mid-twentieth
century and the demands of the flatter management hierarchies now
so common in the twenty-first century workplace. The division between labor and management is no longer so clear.
Two other exclusions are of particular significance due to their
disproportionate effects on an undocumented worker’s right to free
association: agricultural laborers and domestic servants.
As to agricultural laborers,19 labor-management relations affecting millions of farm workers are carved out of the NLRA; they remain
14. NLRA, § 2(3), 29 U.S.C. § 152(3) (2006).
15. Id.
16. These exclusions have been extensively catalogued—and criticized. See, e.g., Lance
Compa, Workers’ Freedom of Association in the United States: The Gap Between Ideals and Practice,
in WORKERS RIGHTS AS HUMAN RIGHTS 23–41 (James A. Gross ed., 2003).
17. 348 N.L.R.B. 686 (2006). Oakwood Healthcare was one of three important cases
interpreting the supervisor exclusion. See also Croft Metals, Inc., 348 N.L.R.B. 717 (2006);
Golden Crest Healthcare, 348 N.L.R.B. 727 (2006).
18. Oakwood Healthcare, Inc., 348 N.L.R.B. at 699–700.
19. To be considered agricultural, an employee’s duties must form an integral part of
ordinary farming operations, and such duties must be performed before the product can
be marketed through normal channels. Employees engaged primarily in duties that serve
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UNIVERSITY OF SAN FRANCISCO LAW REVIEW
[Vol. 44
the exclusive province of the individual states in which they work.20
Yet only four states—Arizona, California, Idaho, and Kansas—have
passed agricultural labor relations statutes. These statutes are patterned somewhat after the NLRA, in that they provide for employee
elections and unfair labor practice proceedings.21
As to domestic servants,22 a veritable army of babysitters, cooks,
home healthcare providers, maids, nannies, and others who work primarily in the home are excluded from the NLRA. A substantial percentage of this group is undocumented. Perhaps this is why a growing
number of home health care workers in selected states are gaining
collective bargaining rights with “employers of record” established by
legislation.23
Since the 1980s, the Supreme Court has added a previously unlisted exclusion: undocumented workers. This development cannot be
explained by the plain meaning of the NLRA. Section 2(3) defines
“employee” as “any” employee, and “shall not be limited to the employees of a particular employer, unless this subchapter explicitly
states otherwise.”24 But nowhere does the subchapter containing section 2(3) “explicitly state[ ] otherwise” as to undocumented workers.25
In fact, the NLRA makes no reference at all to the status of foreign
nationals in the U.S. workforce.
Eleven million or more undocumented people are estimated to
currently live in the United States;26 the precise number is notoriously
difficult to calculate. From 2000 to 2008, undocumented workers in
this country have grown by thirty-seven percent.27 Whether everyone
to increase the value of already-marketable products do not fall within the exclusion.
Under this interpretation, workers engaged in packing, processing, refining, and slaughtering have found to be protected by the Act. See Holly Farms Corp. v. NLRB, 517 U.S. 392
(1996); Bayside Enter., Inc. v. NLRB, 429 U.S. 298 (1977).
20. Most of these states refer to common law principles, “little” Wagner or NorrisLaGuardia Acts, or both. See, e.g., Bravo v. Dolsen Cos., 888 P.2d 147 (Wash. 1995).
21. See, e.g., Babbitt v. United Farm Workers, 442 U.S. 289 (1979). California’s Agricultural Labor Relations Act is one of the more comprehensive statutes. See Agric. Labor Relations Bd. v. Super. Ct., 546 P.2d 687 (Cal. 1976).
22. A substantial amount of literature analyzes some of the gaps left by the statutory
exclusion of domestic workers from labor and other protective legislation. See generally
MARY ROMERO, MAID IN THE U.S.A. (2d ed. 2002).
23. See Stu Schneider, Victories for Home Health Care Workers: Home Health Care Workers
Get Organized, DOLLARS & SENSE, Sep./Oct. 2003, at 25–27 (2003).
24. NLRA, § 2(3), 29 U.S.C. § 152(3) (2006).
25. See id.
26. MICHAEL HOEFER, NANCY RYTINA & BRYAN C. BAKER, DEP’T OF HOMELAND SECURITY,
ESTIMATES OF THE UNAUTHORIZED IMMIGRANT POPULATION RESIDING IN THE UNITED STATES:
JANUARY 2008, at 1 (2009).
27. Id.
Fall 2009]
THE BORDERS OF COLLECTIVE REPRESENTATION
437
welcomes them or not, undocumented immigrants play an indispensable role in the American workforce.28 Workers lacking papers constitute a huge fraction, if not a majority, of the labor found in many lowwage industries. Latinos, for example, increasingly dominate agriculture, culinary service, domestic employment, health care, janitorial
service, and poultry processing.29 Although most Latinos are legal residents, a substantial portion is undocumented and concentrated in
low-wage work.
In theory, an undocumented worker should enjoy the same rights
in the workplace that other workers do. The Supreme Court has held
that such workers are indeed “employees” under the NLRA.30 To this
end, the District of Columbia Circuit Court has held that undocumented workers are entitled to have their votes counted in a representation election.31 The NLRB’s general counsel has taken a similar
position.32
In practice, however, the undocumented worker is treated differently. For example, it is hornbook labor law that workers discharged
for engaging in union organizing, or other activities protected by the
NLRA, are entitled to reinstatement and back pay to make them
whole for their injuries.33 Yet in 1984, the Supreme Court, interpreting the old Immigration and Nationalization Act,34 held that undocumented workers must be denied the reinstatement remedy.35 In 2002,
the Court, attempting to reconcile the NLRA with the newer Immigration Reform and Control Act, added that undocumented workers
must be denied back pay for the same reason.36
As Part II demonstrates, the Hoffman Plastics way is not the only
way. In fact, Hoffman Plastics is based on a distinction that is either
28. See Christopher David Ruiz Cameron, The Labyrinth of Solidarity: Why the Future of
the American Labor Movement Depends on Latino Workers, 53 U. MIAMI L. REV. 1089, 1091–93
(1999).
29. Id.
30. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892–94 (1984).
31. Agri Processor Co., 514 F.3d 1, 2 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 594
(2008).
32. See Memorandum from Arthur F. Rosenfeld, General Counsel, NLRB, to All Regional Directors, Officers-in-Charge and Resident Officers, on Procedures and Remedies
for Discriminates Who May Be Undocumented Aliens After Hoffman Plastic Compounds,
Inc., NLRB GC 02-06, B-3 (July 19, 2002) (declaring employee’s immigration status to be
“irrelevant” in representation proceedings).
33. See, e.g., DOUGLAS L. LESLIE, LABOR LAW IN A NUTSHELL 95–96 (5th ed. 2008).
34. 8 U.S.C. § 1101, amended by Immigration Reform and Control Act of 1986 [hereinafter IRCA].
35. Sure-Tan, Inc., 467 U.S. at 899.
36. Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137, 150 (2002).
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UNIVERSITY OF SAN FRANCISCO LAW REVIEW
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unknown to, or explicitly rejected by, the framers of international labor standards codified in at least eighteen instruments, containing as
many as thirty-one separate provisions, arguably protective of undocumented workers.37
II.
Who Counts as an “Employee” Under International Labor
Standards?
The nomenclature attached to the world’s basic international labor standard is “freedom of association.” It includes, among other
things, the rights to organize, bargain collectively, and strike. Freedom of association has long been acknowledged as a universal or fundamental right.38
The specific labor standards associated with freedom of association are established in a widely accepted body of international norms.
They flow from five sources of international law codified in at least
eighteen separate instruments: (1) human rights instruments developed by the United Nations and related organizations; (2) conventions and other documents elaborated through worker, employer, and
government representatives at the International Labour Organisation
(“ILO”); (3) human rights instruments created by regional governmental bodies; (4) labor rights clauses in international trade agreements; and (5) the governing documents of the European Union.
The United States has accepted obligations under some, but not all, of
these instruments.39
For the purposes of this Article, the key common feature of these
eighteen instruments is that the term “employee” is not found in any
37. For a table listing each of these eighteen instruments, together with the thirty-one
relevant provisions, see infra Appendix A.
38. I am indebted to Professor Lance Compa—whose influence is felt throughout this
paper—for his comprehensive work summarizing the key international labor standards. See
Compa, supra note 16, at 23–41. I am also grateful to the team of co-authors whose textbook enriched my knowledge of the field. See JAMES ATLESON, LANCE COMPA, KERRY RITTICH, CALVIN SHARPE & MARLEY WEISS, INTERNATIONAL LABOR LAW: CASES AND MATERIALS ON
WORKERS’ RIGHTS IN THE GLOBAL ECONOMY (2008); see also, ROGER BLANPLAIN, SUSAN BISOMRAPP, WILLIAM R. CORBETT, HILARY K. JOSEPHS & MICHAEL J. ZIMMER, THE GLOBAL WORKPLACE: INTERNATIONAL AND COMPARATIVE EMPLOYMENT LAW CASES AND MATERIALS LAW 288
(2007) [hereinafter THE GLOBAL WORKPLACE].
39. There have been prior published efforts to address the application of the international labor standards codified in many of these eighteen instruments in a systemic, albeit
somewhat less comprehensive, way. See Sarah Cleveland, Beth Lyon & Rebecca Smith, InterAmerican Court of Human Rights Amicus Curiae Brief: The United States Violates International Law
When Labor Remedies Are Restricted Based on Workers’ Migrant Status, 1 SEATTLE J. FOR SOC.
JUST. 795 (2003); see also Jill Borak, A Wink and a Nod: The Hoffman Case and Its Effects on
Freedom of Association for Undocumented Workers, 10 HUM. RTS. BRIEF 20 (2003).
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THE BORDERS OF COLLECTIVE REPRESENTATION
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of them.40 Instead, the broader terms “everyone,” “[e]very person,” or
“worker[ ]” are used.41 Except for United Nations Resolution 40/144,
the eighteen instruments make no explicit attempt to differentiate between employees based on documented versus undocumented or regular versus irregular status.
A. International Human Rights Instruments
At least five instruments containing thirteen separate provisions
establish international labor standards for undocumented workers by
framing such standards in terms of human rights.
Article 20(1) of the Universal Declaration of Human Rights
(“UDHR”) states: “Everyone has the right to freedom of peaceful assembly and association.”42 Moreover, Article 23(4) states: “Everyone
has the right to form and to join trade unions for the protection of his
interests.”43 As noted above, freedom of association has long been
considered a basic human right that includes the right to form, join,
and seek the assistance of trade unions. One of the three founding
documents of the United Nations, the UDHR was adopted by the
United Nations General Assembly. Like all United Nations member
nations, the United States is bound to the obligations created by the
UDHR. (In fact, one of its co-authors was Eleanor Roosevelt.)
Article 22(1) of the International Covenant on Civil and Political
Rights (“ICCPR”) declares: “Everyone shall have the right to freedom
of association with others, including the right to form and join trade
unions for the protection of his interests.”44 The United States ratified
the ICCPR in 1992. In doing so, it took several reservations, understandings, and declarations limiting or avoiding various obligations in
the covenant. Notably, it took no reservations, understandings, or declarations with respect to Article 22(1) on the right to form and join
trade unions, or to Article 2(3) requiring an “effective remedy” for
rights violations.45
Article 8(1) of the International Covenant on Economic, Social,
and Cultural Rights obligates governments to “ensure . . . the right of
40. Occasionally, however, the term “employment” is used to indicate a working relationship for remuneration. See infra Appendix A.
41. Id.
42. Universal Declaration of Human Rights, G.A. Res. 217A, art. 20(1), U.N. GAOR,
3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR].
43. Id. art. 23(4).
44. International Covenant on Civil and Political Rights art. 22(1), Mar. 23, 1967, 999
U.N.T.S. 171 [hereinafter ICCPR].
45. Id. art. 2(3)(a).
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everyone to form trade unions and join the trade union of his choice,”
“the right of trade unions to function freely . . . [and] . . .the right to
strike . . . .”46 This instrument has not been ratified by the United
States, but under principles of international law more generally accepted outside the United States, the country is considered bound to
its standards anyway.
The International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families (“Migrant Workers Convention”) is one of the few instruments to deal specifically with
the problems faced by persons working in “irregular” employment—
that is, workers who do not have legal status in the countries in which
they are living and working, including the undocumented.
Procedurally, Article 2(1) of the Migrant Workers Convention defines a “migrant worker” as “a person who is to be engaged, is engaged
or has been engaged in a remunerated activity in a State of which he
or she is not a national.”47 Article 25(1) states: “Migrant workers shall
enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration . . . .”48
Related to this, Article 25(3) states:
[Bound countries] shall take all appropriate measures to ensure
that migrant workers are not deprived of any rights derived from
this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or
contractual obligations, nor shall their obligations be limited in
any manner by reason of such irregularity.49
Substantively, Article 26(1) of the Migrant Workers Convention
guarantees “the right of migrant workers and members of their families . . . [t]o take part in meetings and activities of trade unions . . .
[t]o join freely any trade union . . . [and] [t]o seek the aid and assistance of any trade union.”50 Like the labor standards codified in other
human rights conventions, the labor standards set forth in the Migrant Workers Convention are not absolute. Language found in Article 26(2) is typical: “No restrictions may be placed on the exercise of
these rights other than those that are prescribed by law and which are
necessary in a democratic society in the interests of national security,
46. International Covenant on Economic, Social and Cultural Rights art. 8(1)(a),
(c)–(d), Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter ICESCR].
47. International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families art. 2(1), July 1, 2003, 2220 U.N.T.S. 3 [hereinafter Migrant Workers Convention].
48. Id. art 25(1).
49. Id. art. 25(3).
50. Id. art. 26(1).
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THE BORDERS OF COLLECTIVE REPRESENTATION
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public order (ordre public) or the protection of the rights and freedoms of others.”51
The Migrant Workers Convention is especially notable for
broadly protecting families as well as workers. Families’ rights include
freedom of religion and expression, privacy, property, urgent medical
care, access to education, and in some circumstances, other state-supported benefits.
Perhaps because the protections offered by the Migrant Workers
Convention are so broad, its reach remains quite narrow. As of October 2009, only forty-two countries—none of them developed nations
such as the United States or Canada—had become parties to it.52
Finally, there is United Nations Resolution 40/144, otherwise
known as the Declaration on the Human Rights of Individuals Who
Are Not Nationals of the Country in Which They Live. This document
is unique for using the term “aliens” to refer to non-citizen workers.
Drawing on provisions in the United Nations Charter encouraging
universal respect for and observance of fundamental human rights,
Article 8(1) of United Nations Resolution 40/144 states: “Aliens lawfully residing in the territory of a State shall also enjoy” certain
rights,53 including “[t]he right to join trade unions and other organizations or associations of their choice . . . .”54 But Article 8 says the
enjoyment of such rights is qualified by Article 4,55 which provides:
“Aliens shall observe the laws of the State in which they reside or are
present and regard with respect the customs and traditions of the people of that State.”56 It may well be that modifying “aliens” with the
term “lawfully” in Article 8, taken together with the qualifier in Article
4, effectively guarantees only to documented or regular workers the
right to enjoy freedom of association. In any event, under Article
8(1)(b), aliens remain subject to having such restrictions placed on
51. Id. art. 26(2); see also, ICCPR, supra note 44, arts. 22(1) and 22(2) (limiting rights
to associate freely and to join trade unions); ICESCR, supra note 46, arts. 8(1)(c), 8(2)
(limiting rights of trade unions, military personnel, and police personnel); UDHR, supra
note 42, art. 29(2) (limiting human rights).
52. United Nations Treaty Collection, http://treaties.un.org (follow “Status of Treaties” hyperlink; then “Chapter IV” hyperlink; and follow hyperlink 13 “International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families. New York, Dec. 18, 1990) (last visited Oct. 19, 2009).
53. Declaration on the Human Rights of Individuals Who Are Not Nationals of the
Country in Which They Live, G.A. Res. 40/144, art. 8(1), U.N. GAOR, 40th Sess., 116th
plen. mtg., U.N. Doc. A/RES/40/144 (Dec. 13, 1985).
54. Id. art. 8(1)(b).
55. Id. art. 8(1).
56. Id. art. 4.
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their right to freedom of association “which are necessary, in a democratic society, in the interests of national security or public order or
for the protection of the rights and freedoms of others.”57
B. ILO Conventions
At least three ILO instruments containing four separate provisions establish international labor standards for undocumented workers. These standards have been elaborated by the ILO’s Committee on
Freedom of Association (“CFA”) after decades of careful consideration of worldwide allegations concerning violations of workers’ rights
to form or join labor organizations, to engage in collective bargaining,
and to go on strike.
Article 2 of ILO Convention No. 87 on Freedom of Association
and Protection of the Right to Organise provides: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to
join organisations of their own choosing without previous authorisation.”58 The words “without distinction whatsoever” make clear that
the rights of undocumented workers are not to be treated less favorably than those of documented workers.
Article 1(1) of ILO Convention No. 98 on the Right to Organise
and Collective Bargaining declares: “Workers shall enjoy adequate
protection against acts of anti-union discrimination in respect of their
employment.”59 The words “adequate protection” suggest that the
remedies available to undocumented workers are not to be less
favorable than those afforded to documented workers. Article 1(2)
adds:
Such protection shall apply more particularly in respect of acts calculated to [ ] (a) make the employment of a worker subject to the
condition that he shall not join a union or shall relinquish trade
union membership; (b) cause the dismissal of or otherwise
prejudice a worker by reason of union membership or because of
participation in union activities . . . .60
57. Id. art. 8(1)(b).
58. International Labour Organisation, Convention (No. 87) Concerning Freedom of
Association and Protection of the Right to Organise art. 2, July 9, 1948, 68 U.N.T.S. 17,
reprinted in ILO, CONVENTIONS AND RECOMMENDATIONS 527 (1996) [hereinafter ILO C. 87].
59. International Labour Organisation, Convention (No. 98) Concerning the Application of the Principles of the Right to Organise and Bargain Collectively art. 1(1), July 1,
1949, 96 U.N.T.S. 257, reprinted in ILO, CONVENTIONS AND RECOMMENDATIONS 639 (1996)
[hereinafter ILO C. 98].
60. Id. art. 1(2)(a)–(b).
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The United States has ratified neither ILO Convention No. 87
nor ILO Convention No. 98. But it has accepted obligations relating
to freedom of association under these conventions by virtue of its
membership in the International Labour Organisation.61 This is due
to a third ILO instrument: the Declaration on Fundamental Principles
and Rights at Work (“DFPRW”). Article 2 of the DFPRW states:
[A]ll members, even if they have not ratified the Conventions in
question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote and to realize, in
good faith and in accordance with the [ILO] Constitution, the
principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and
the effective recognition of the right to collective bargaining . . . .62
Citing the DFPRW,63 the American Federation of Labor and Congress of Industrial Organizations, together with the Confederación de
Trabajadores de Mexico, filed a complaint with the ILO’s CFA. The
complaint alleged that the Hoffman Plastics decision violated the
United States’ obligations under the DFPRW. In 2003, the CFA issued
a report finding that eliminating the back pay remedy left the U.S.
government with insufficient means for ensuring that undocumented
workers are protected from anti-union discrimination.64 This decision
is binding on the United States by virtue of its having accepted obligations under the DFPRW.
61. International Labour Organization, Report of the Fact-Finding and Conciliation
Commission on Freedom of Association Concerning the Trade Union Situation in Chile,
para. 466 (1975).
62. International Labour Organisation, Declaration on Fundamental Principles and
Rights at Work art. 2(a), June 18, 1998, 37 I.L.M. 1233 [hereinafter DFPRW].
63. To those unfamiliar with the nuances of international law, there might seem to be
a contradiction between recognizing a nation’s sovereign power to refrain from signing or
ratifying an instrument codifying international labor standards, and holding that nation to
the obligations under some of those standards anyway. This apparent contradiction was
addressed in commentary to the DFPRW. The commentary, which was written by the chief
of the Equality and Human Rights Coordination Branch of the ILO, explains the basis of
every nation’s obligations under the DFPRW arises from its membership in the ILO. Therefore, declarations on behalf of the entire organization—such as the DFPRW—are binding
even though the precise labor standards set forth in conventions like ILO C. 87 and ILO C.
98 may not be. As the commentator put it:
This does not mean that the Conventions the ILO has adopted to develop
these [international labor] principles will be extended to member States which
have not ratified them. It means rather that States have an obligation to pursue
the realization of the principles in ways appropriate to their own situation, and to
report regularly on how they do so.
Lee Swepston, Introductory Note, International Labour Conference: ILO Declaration on Fundamental Principles and Rights at Work and Annex, 37 I.L.M. 1233, 1234 (1998).
64. See Complaints Against the Government, supra note 11.
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C. Regional Human Rights Instruments
At least four regional human rights instruments containing as
many as five separate provisions establish international labor standards for undocumented workers in the Americas.
Article XXII of the American Declaration of the Rights and Duties of Man states: “Every person has the right to associate with others
to promote, exercise and protect his legitimate interests of a political,
economic, religious, social, cultural, professional, labor union or
other nature.”65 The reference to “[e]very person” does not admit distinctions due to immigration status. The instrument was the world’s
first human rights instrument of a general nature, predating the
UDHR by about six months. It was adopted in Bogotá, Colombia, at
the same meeting that created the thirty-five member Organization of
American States (“OAS”). The United States is a member of the OAS,
which is headquartered in Washington, D.C.
Relevant to this point, Article 29(a) of the Charter of the OAS
provides: “All human beings, without distinction as to . . . social condition, have the right to attain material well-being and spiritual growth
under circumstances of liberty, dignity, equality of opportunity, and
economic security.”66 Article 29(b) adds: “Work is a right and a social
duty . . . it demands respect for freedom of association and for the
dignity of the worker . . . .”67
Section 16(1) of the American Convention on Human Rights declares: “Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other
purposes.”68 Moreover, section 8(1) of the Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social, and Culture Rights (“Protocol of San Salvador”) states that parties to the Protocol of San Salvador “shall ensure: [t]he right of
workers to organize under trade unions and to join the union of their
choice for the purpose of protecting and promoting their interests.”69
65. American Declaration of the Rights and Duties of Man art. XXII, May 2, 1948,
OAS Res. XXX, adopted by the Ninth Int’l Conf. of Amer. States, reprinted in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, OEA/Ser.L.V/II.82
doc. 6 rev. 1 at 17 (1992).
66. Charter of the Organization of American States art. 29(a), Dec. 13, 1951, 2 U.S.T.
2394, 119 U.N.T.S. 3.
67. Id. art. 29(b).
68. Organization of American States, American Convention on Human Rights art.
16(1), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
69. Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Culture Rights art. 8(1)(a),
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Concerned that the Hoffman Plastics decision violated the principles codified by these instruments, the Republic of Mexico, following
a path similar to that taken by American and Mexican trade unionists
before the ILO’s Committee on Freedom of Association, filed a case
with the Inter-American Court of Human Rights (“IACHR”). In 2003,
the IACHR issued an opinion advising that, despite their irregular status, undocumented workers in the United States are frequently
treated unfavorably compared to other workers.70 The decision, however, is not binding on the United States.
D. Labor Rights Clauses in Free Trade Agreements
At least four free trade agreements containing as many as five
separate provisions establish international labor standards for bilateral
or multilateral trade relations between the United States and other
countries.
The North American Free Trade Agreement (“NAFTA”)71—to
which Canada, Mexico, and the United States are parties—includes a
labor side agreement, the North American Agreement on Labor Cooperation (“NAALC”). The first three “labor principles” codified in
the NAALC are (1) freedom of association and protection of the right
to organize, (2) the right to bargain collectively, and (3) protection of
the right to strike.72 To the point, Article 4(1) of NAALC provides:
“Each Party shall ensure that persons with a legally recognized interest
under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial or labor tribunals for the enforcement
of the Party’s labor law.”73 Moreover, Article 4(2) states: “Each party’s
law shall ensure that such persons may have recourse to, as appropriate, procedures by which rights arising under: [ ] its labor law, including in respect of . . . employment standards, industrial relations and
migrant workers . . .” can be enforced.74 At first glance, the guarantees
of “appropriate access” and “recourse” to “appropriate” procedures
Nov. 16, 1999, O.A.S.T.S. No. 69, reprinted in BASIC DOCUMENTS PERTAINING TO HUMAN
RIGHTS IN THE INTER-AMERICAN SYSTEM, at 67 (1992) [hereinafter Protocol of San
Salvador].
70. Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 18, at 106, 136 (Sept. 17, 2003).
71. North American Free Trade Agreement, Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M.
289 (1993).
72. North American Agreement on Labor Cooperation, U.S.-Can.-Mex., art.
49(1)(a)–(c), Sept. 14, 1993, 32 I.L.M. 1499 (1993).
73. Id. art. 4(1).
74. Id. art. 4(2).
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for “migrant workers” would not seem to make any distinctions as to
undocumented migrant workers. But Article 4(1) clearly does; it obligates the signatory nation to ensure rights as to “persons with a legally
recognized interest under its law in a particular matter”75—thereby
leaving room for domestic immigration laws restricting the rights of
undocumented and other persons without “legally” recognized
interests.
Article 16(1) of the Dominican Republic-Central America-United
States Free Trade Agreement (“CAFTA”) “reaffirm[s]” the parties’
“obligations as members of the [ILO] and their commitments under
the ILO Declaration on Fundamental Principles and Rights at Work and Its
Follow-Up . . . .”76 Thus CAFTA incorporates by reference Article 2 of
the DFPRW, which requires the United States to honor the principles
set forth in ILO Conventions No. 87 and No. 98 and their implications
for undocumented workers. Moreover, Article 16(2) of CAFTA states
that “[a] party shall not fail to effectively enforce its labor laws . . . .”77
Similarly, Article 6(1) of the Agreement Between the United
States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area (“Jordan Free Trade Agreement”)
“reaffirm[s]” the parties’ “obligations as members of the [ILO] and
their commitments under” the DFPRW to “strive to ensure that such
labor principles and the internationally recognized labor rights . . .
are recognized and protected by domestic law.”78
To the same effect, Article 17(1) of the United States-Columbia
Trade Promotion Agreement (“Columbia TPA”) “reaffirm[s]” the parties’ obligations as members of the ILO.79 Article 17(2) also requires
each party to “adopt and maintain in its statutes and regulations, and
practices thereunder, the following rights, as stated in” the DFPRW.80
75. Id. art. 4(1).
76. Dominican Republic-Central America-United States Free Trade Agreement art.
16(1)(1), Aug. 5, 2004, 119 Stat. 462, 43 I.L.M. 514 (2004) (draft text) [hereinafter
CAFTA].
77. Id. art. 16(2)(1)(a).
78. Agreement Between the United States of America and the Hashemite Kingdom of
Jordan on the Establishment of a Free Trade Area, U.S.-Jordan art. 6(1), Oct. 24, 2000, 41
I.L.M. 63.
79. United States-Colombia Trade Promotion Agreement art. 17(1)(1), Nov. 22,
2006, (not in force) [hereinafter Colombia TPA], available at http://www.ustr.gov/tradeagreements/free-trade-agreements/colombia-fta (last visited Oct. 12, 2009)
80. Id. art. 17(2)(1).
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E. European Union Governing Documents
Even though the United States is obviously not a member of the
European Union (“EU”), the EU is often held up as a successful
model of social, cultural, and economic—if not political—integration.
The free movement of persons in general, and workers in particular,
is one of the cornerstones of EU governance.81 No distinction is made
between “worker” and “employee.” Indeed, in proclaiming this right,
the EU’s governing documents go much further than the NAALC
does—or even international labor standards do—by abolishing distinctions between workers based on citizenship.
At least two EU instruments containing some four relevant provisions are illustrative: the Treaty Establishing the European Community (“EC Treaty”) and the Charter of Fundamental Rights of the
European Union (“EU Charter”). Under these instruments, a single
internal market is established in accordance with four fundamental
freedoms: “the abolition, as between Member States, of obstacles to
the free movement of goods, persons, services and capital.”82 Although the EU Charter declares freedom of movement to be a fundamental right of workers, it is limited to the purpose of performing
economic activity: “Mobility of labour . . . is looked upon as one of the
means by which the worker is guaranteed the possibility of improving
his living and working conditions and promoting his social advancement, while helping to satisfy the requirements of the economies of
the Member States.”83
To these ends, Article 39 of the EC Treaty provides: “Such freedom of movement shall entail the abolition of any discrimination
based on nationality between workers of the Member States as regards
employment, remuneration and other conditions of work and
employment.”84
Further, Article 12 of the EU Charter states: “Everyone has the
right to . . . freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone
81. See THE GLOBAL WORKPLACE, supra 38.
82. Treaty Establishing the European Community (Consolidated Version) art.
3(1)(c), Apr. 16, 2003, 2006 O.J. (C 321) 44 [hereinafter EC Treaty].
83. Council Reg. No. 1612/68, Oct. 15, 1968, 1968 O.J. SPEC. ED. 475, amended by Reg.
312/76, Feb. 9, 1976, 1976 O.J. (L 3/2) and Council Reg. No. 2434/92, 1992 O.J. (L 25).
84. EC Treaty art. 39(2); see, e.g., Case C-415/93, URBSFA v. Bosman, 995 E.C.R. 4921
(1995) (declaring transfer fee—mandated by rules of FIFA and other sporting associations—to be paid by acquiring professional soccer club to player’s former club to violate
Article 39).
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to form and join trade unions for the protection of his or her
interests.”85
III. Hoffman Plastics Revisited: Some Thoughts About Who Counts
For at least three reasons, courts in the United States should consider limiting Hoffman Plastics to its narrow facts and reinterpret the
NLRA to conform to international labor principles by including undocumented workers as “employees” who are entitled to the full rights
and remedies guaranteed by the law.86
First, as demonstrated by Part II, the plain meaning of section
2(3) of the NLRA does not support carving out undocumented workers from the definition of “employee.” If anything, the otherwise
broad language of that provision, coupled with its short but certain list
of exceptions, demonstrates that Congress knew precisely how to
carve out categories of non-employees. To argue otherwise is to conclude, by inference or implication, that Congress intended to omit
millions of working people who were contributing to the lifeblood of
our economy, for no reason other than the accident of their citizenship. There is no evidence of this intent in the language or legislative
history of either NLRA or IRCA.
Second, as demonstrated by this Part III, the pull of international
labor standards away from Hoffman Plastics is strong. Table 1 summarizes the information from the eighteen instruments discussed in this
section.
85. Charter of Fundamental Rights of the European Union art. 12(1), Dec. 7, 2000,
2000 O.J. (C 364) 11.
86. Pointing to recent decisions from the courts in the European Union, Professor
Judy Fudge has sounded a cautionary note about the project of “constitutionalizing”
human rights—including international labor standards—by incorporating them into regional or national legal regimes. Of particular concern is the paradox by which courts
recognize such rights broadly but apply them narrowly. See Judy Fudge, Constitutionalizing
Labour Rights in Europe, in RESCUING HUMAN RIGHTS (Tim Campbell & Keith Ewing eds.,
forthcoming 2010); see also Judy Fudge, The New Discourse of Labour Rights: From Social to
Fundamental Rights?, 29 COMP. LAB. L. & POL’Y J. 29 (2007).
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TABLE 1
Terminology Used in International Labor Rights Instruments
Term Used
Number
Everyone, every person, all human beings
Workers or migrant workers
Aliens or similar term87
Employees
7
6
2
0
Of the eighteen instruments examined here, none use the term
“employee”; instead, thirteen use the terms “everyone,” “every person,” or “all human beings” (seven instruments) and “worker” or “migrant worker” (six other instruments).88 Even the few documents
using more restrictive language—either “alien” or “persons with a legally recognized interest” (two instruments)—do not use the term
“employee.”89 Of course, in this country, international labor standards
are rarely, if ever, relied upon to rewrite the terms adopted by Congress in the labor and immigration statutes. But they can be looked to
for guidance in resolving doubts and ambiguities. By virtue of the
United States having accepted obligations under such standards, it
would seem imperative to take this approach; otherwise, the acceptance of such obligations would mean little. Any doubts or ambiguities
about whether “employees” are entitled to remedies for violations of
their rights in the workplace can be readily resolved by reference to
international labor standards applicable to “everyone,” “every person,”
or “workers.” In short, as this discussion demonstrates, the Hoffman
Plastics way is not the only way.
Finally, as a practical matter, the lower state and federal courts
are already doing what this Article suggests. With few exceptions, they
are following the spirit, if not the letter, of international labor standards applicable to irregular workers. By my count, there are at least
forty-four reported decisions in which the court addressed the argument that Hoffman Plastics should limit the remedies or rights of undocumented workers for violations of state or federal employment
laws, including employment discrimination, minimum wage, prevailing wage, unemployment compensation, workers’ compensation, and
workplace safety laws. (In some of these decisions, employers sought
to discover the immigration status of plaintiffs who were probably undocumented.) None of these decisions expressly relied on the instru87. See NAALC, supra note 72 (“persons with a legally recognized interest under [the
country’s] law in a particular matter”).
88. See infra Appendix A.
89. Id.
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ments codifying international labor standards discussed in this Article.
Yet, in all forty-four reported decisions, the court refused to follow,
declined to extend, distinguished, or recognized the limits of, the
holding in Hoffman Plastics.90
Why are post-Hoffman Plastics courts doing this? A review of the
opinions accompanying these decisions suggests at least two reasons:
first, as with the NLRA and IRCA, nothing in the plain language of the
applicable state or federal employment statute suggests that withholding remedies or rights from undocumented workers would comport
with sound public policy; and second, ruling otherwise would simply
give offending employers an undeserved windfall for breaking the law.
The latter is especially true as to back pay for workers who have already performed the work. As the Kansas Supreme Court put it in a
prevailing wage case: “[W]e conclude that to deny or to dilute an action for wages earned but not paid on the ground that such employment contracts are ‘illegal,’ would thus directly contravene the public
policy of the State of Kansas.”91
The implications of reconsidering who counts as an “employee,”
and what remedies they are entitled to, are enormous. About eleven
million undocumented persons reside within the borders of the
United States.92 Most of these people are engaged in some type of
work; one source estimates the number of unauthorized workers at
8.3 million, or about 5.4% of the nation’s workforce.93 Undocumented workers are concentrated in low-wage industries, such as agriculture, construction, food processing, garment manufacturing, the
hospitality industry, and landscaping. Indeed, undocumented workers
may represent about ten percent of all low-wage workers in the United
States, and as much as fifty to sixty percent of the agricultural
workforce.94 If U.S. employers—and by extension, consumers—are
90. For a sample of these forty-four decisions, see, e.g., Coma Corp. v. Kansas Dep’t of
Labor, 154 P.3d 1080, 1092 (Kan. 2007); Reyes v. Van Elk, Ltd., 56 Cal. Rptr. 3d 68, 78
(2007); Madeira v. Affordable Housing Found, Inc., 315 F. Supp. 2d 504 (S.D.N.Y. 2004), aff’d,
469 F.3d 219 (2d Cir. 2006) (not followed on state law grounds). A complete list is on file
with author.
91. Coma Corp., 154 P.3d at 1092; see, e.g., Reyes, 56 Cal. Rptr. 3d at 78 (“[S]uch awards
do not condone future unauthorized work; rather they make it clear that employers should
not be allowed to profit from employing undocumented workers and then exploiting
them.”).
92. HOEFER, RYTINA & BAKER, supra note 26, at 1.
93. JEFFREY S. PASSEL & D’VERA COHN, PEW HISPANIC CENTER, A PORTRAIT OF UNAUTHORIZED IMMIGRANTS IN THE UNITED STATES i (2009).
94. Wayne A. Cornelius & Takeyuki Tsuda, Controlling Immigration: The Limits of Government Intervention, in CONTROLLING IMMIGRATION: A GLOBAL PERSPECTIVE 1, 20 (Wayne A.
Cornelius et al. eds., 2004).
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willing to accept the benefits of undocumented work, then they
should also accept its costs, in the form of respecting work-related
rights.
As of 2005, one United Nations report estimated that around the
world some 191 million people were living outside the country in
which they were born.95 The World Commission on the Social Dimensions of Globalization more conservatively estimated that there were
fifteen to thirty million irregular migrants.96 But if the estimate of
eleven million undocumented persons by the United States is accurate, then both estimates are probably too low.
In any event, eleven million is an awfully lot of people from
whom to take away fundamental human rights with a whisper, rather
than a shout, as Hoffman Plastics did. Many of them are marginal workers and people of color. To some Americans, the terms “undocumented worker” and “Hispanic” are synonyms. Of course, not all
undocumented workers are Hispanic, but there is little doubt that
workers of Latino origins are disproportionately affected. So, too,
have many Chinese, Thai, and Filipino workers been the subject of
sensational reports about their mistreatment.
We sometimes forget that the primary means of enforcing most
labor standards—from minimum wages to safe working conditions—is
voluntary compliance. To back up voluntary compliance, most U.S.
employment law regimes rely on supervision by government agencies,
the availability of workers’ private rights of action, or some combination of the two. But these mechanisms have their limits; government
officials may lack the resources or political will, and private rights of
action may be too expensive for low- or middle-income workers. Without the availability of one, the other, or both, voluntary compliance by
employers may be minimal. Trade unions can fill the gap by providing, outside the vagaries of state bureaucracies, an inexpensive means
of enforcing not only collectively bargained rights, but also minimum
labor standards. To deny undocumented workers access to trade
unionism is to effectively deny them access to viable means of enforcing a wide variety of other substantive rights.
95. U.N. Dep’t Econ. & Soc. Affairs, Population Division, International Migration Report 2006: A Global Assessment xiv, U.N. Doc. ESA/P/WP.209 (2009), available at http://
www.un.org/esa/population/publications/2006_MigrationRep/exec_sum.pdf (indicating
the United States hosted the largest number of migrants—thirty-eight million—in 2005,
followed by the Russian Federation with twelve million and Germany with ten million).
96. World Comm’n on the Soc. Dimensions of Globalization, June 1–17, 2004, A Fair
Globalization: Creating Opportunities for All 96, available at http://www.ilo.org/public/english/wcsdg/docs/report.pdf.
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Today it is often argued that labor rights are human rights. If so,
then international labor laws—including those guaranteeing access to
the institutions of collective bargaining—should be respected more
across national borders.97 And, why not? After all, the laws of labor
economics operate without reference to national borders. In so many
industries, jobs are established where labor costs are the most attractive, and people, irrespective of their nationality, will be attracted to
go wherever those jobs are located. As a result, “[t]he reasons for concluding international treaties on labour rights may thus be seen as
primarily protective of employees, redressing the imbalance of their
otherwise enfeebled status[]”98—without regard to the citizenship of
these employees.
97. See, e.g., Clyde Summers, The Battle in Seattle: Free Trade, Labor Rights, and Societal
Values, 22 U. PA. J. INT’L ECON. L. 61, 63–68 (2001).
98. Janet Dine, Human Rights and Company Law, in HUMAN RIGHTS STANDARDS AND THE
RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS 209, 210 (Michael K. Addo ed., 1999).