Effect given to the recommendations of the committee and the Governing Body - Report No 356, March 2010

Case No 2227 (United States of America) - Complaint date: 18-OCT-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 61. The Committee last examined this case – which concerns the effects of the inadequacy of the remedial measures left to the National Labor Relations Board (NLRB) in cases of illegal dismissals of undocumented workers, as a result of the decision of the Supreme Court in the case of Hoffman Plastic Compounds v. NLRB – at its March 2009 meeting [see 353rd Report, paras 87–95]. On that occasion, the Committee once again requested the Government to take steps, within the context of the ongoing debate on comprehensive immigration reform, to consult the social partners concerned on possible solutions aimed at ensuring effective protection for undocumented workers against anti-union dismissals.
2. 62. In a communication dated 8 October 2009, the Government states that governmental agencies continue, with the assistance of the social partners, to educate all workers, including undocumented workers, about their labour rights under applicable labour and employment laws. Furthermore, the NLRB continues to coordinate with the social partners to protect the freedom of association rights of undocumented workers under the National Labor Relations Act (NLRA).
3. 63. The Government further indicates that federal and state courts continue to apply Hoffman narrowly and that there has been no case law that has interpreted the decision to undercut freedom of association and collective bargaining rights for undocumented workers. In this respect, the Government indicates that the Supreme Court has declined to review the US Court of Appeals’ ruling in Agri Processor Co., Inc. v. NLRB, that undocumented workers were employees within the meaning of the NLRA.
4. 64. The only recent case which considered the Hoffman decision in the context of freedom of association is the NLRB v. C & C Roofing Supply, Inc. (2009) case. In its decision, the US Court of Appeals for the Ninth Circuit requested an employer to pay liquidated damages to 20 workers fired unlawfully for their union activity, but held that the employer was not required to offer reinstatement if it could prove the workers were not authorized to work in the United States. The Government indicates that “in reaching the decision, the court rejected the employer’s argument that compliance with the terms of the agreement would require it to violate the Hoffman decision by providing a remedy that includes back pay to undocumented workers”. The court determined that “unlike reinstatement and back pay, liquidated damages do not pose an irreconcilable conflict with [the Immigration Reform and Control Act of 1986], because they are not predicated on an employee’s availability for work”. The Government considers that while this case involved a voluntary agreement between an employer and an aggrieved group of workers, rather than an NLRB-imposed award for back pay, the decision is yet another example of how US courts continue to protect the rights of undocumented workers and to limit the application of the Hoffman decision.
5. 65. The Committee notes the Government’s indication that governmental agencies, with the assistance of social partners, educate workers, including undocumented workers, about their labour rights, and that the NLRB continues to coordinate with the social partners to protect their freedom of association rights. It further notes the Supreme Court’s refusal to review the Court of Appeals’ decision in the Agri Processor Co. Inc. case, which maintained that undocumented workers are employees within the meaning of the NLRA.
6. 66. The Committee notes with interest that in the NLRB v. C & C Roofing Supply, Inc. case, the employer was requested to pay liquidated damages to employees illegally dismissed for their union activities. The Committee recalls that when reinstatement is not possible, the dismissed employees should be adequately compensated and that such compensation should take into account both the damage incurred and the need to prevent the repetition of such situations in the future. The Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 844–845]. The Committee requests the Government to continue to keep it informed of innovative steps taken to ensure that undocumented workers are sufficiently protected against acts of anti-union discrimination and to provide information on the steps taken to consult the social partners concerned on further possible solutions aimed at ensuring effective protection for undocumented workers.