Divergent rulings complicate immigration law

WASHINGTON -- Federal law prohibits hiring undocumented workers but it also requires companies to bargain with unions that represent them, under a recent court ruling that showcases the unresolved paradoxes that U.S. immigration policy poses.

While Congress remains stalemated, judges keep interpreting how current immigration law works. The latest ruling by what lawyers consider the nation's second-highest federal court reveals how the results can appear to be confounding.

"It seems somewhat peculiar indeed ... to order an employer to bargain with a union representing employees that the employer would be required to discharge under the Immigration Reform and Control Act," acknowledged Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the District of Columbia Circuit.

Henderson nonetheless concluded that an agricultural processing company had to bargain with a union even though most of the union's local members were in the United States illegally.

A former North Carolina attorney and Republican judicial nominee, Henderson joined Judge David Tatel, a Democratic appointee, in the 2-1 appellate panel decision. Implications from the ruling, issued without fanfare Friday, could spread to any state with large numbers of illegal immigrant workers.

Court covers all federal agencies

"The right decision for business is to have clear and concise laws regarding undocumented workers. This case does not do that," said Joy Madison, president of the Modesto Chamber of Commerce. "Moreover, business needs to communicate with Congress what it wishes to do in regards to immigration before individual states legislate 50 different sets of laws or judicial fiat creates more confusion."

The D.C. appellate court is important because it spans all federal regulatory agencies.

Agri Processor Co. is a kosher meat manufacturer in Brooklyn, N.Y. In September 2005, the company's workers voted 15-5 to join the United Food and Commercial Workers union. Company officials refused to bargain and told the National Labor Relations Board that they'd discovered that illegal immigrants dominated their work force.

"(The company) put the Social Security numbers given by all the voting employees into the Social Security Administration's online database and discovered that most of the numbers were either nonexistent or belonged to other people," Tatel noted.

Board member admits ruling 'peculiar'

Agri Processor argued that undocumented workers couldn't count as the kind of employees who were protected under the National Labor Relations Act. The National Labor Relations Board rejected the argument and ruled that illegal workers could have a collective bargaining vote.

"(It) may reasonably be seen as somewhat peculiar by the average person," one board member conceded in the board's opinion.

The company appealed, noting that the 1986 Immigration Reform and Control Act made it illegal for a company to knowingly hire undocumented workers. By some estimates, 6 million companies nationwide employ upward of 7 million illegal immigrants.

Courts have struggled to define illegal immigrants' rights ever since Congress passed the 1986 law.

For instance, in a 1999 case involving a furniture company in Redwood City, judges concluded that illegal immigrants could vote in union elections. On the other hand, the Supreme Court ruled in a 2002 Southern California case that companies couldn't be compelled to provide back pay to illegally laid-off undocumented workers.

In its new ruling, the D.C. appellate panel noted that the authors of the 1986 immigration law explicitly declared that employer sanctions weren't meant to "undermine or diminish in any way labor protections in existing law."

"Including undocumented workers within the meaning of 'employee' is entirely reasonable," the panel said.