Who does the work?

The recent decision of the Supreme Court in the case of Hoffman Plastics is not only another instance of class justice, or rather, injustice; the logic of Chief Justice William Rehnquist makes it plain that the court's majority lives in denial of the social reality millions of working people face every day.

The court began by making worse an already-bad precedent. In a previous decision in the Sure-Tan case, millions of undocumented immigrants lost the right to be reinstated to their jobs if they were fired for joining a union. Now the Rehnquist court says they can also forget about back pay for the time they were out of work.

The decision rewards employers who want to stop union organizing efforts among immigrant workers - the very people who've built a decade-long track record of labor activism, often organizing themselves even when unions showed little interest. Their bosses can now terminate undocumented workers without fear of any monetary consequences.

But the court's logic goes further, willfully ignoring social reality. Today one worker in every twenty participating in a union drive gets fired, immigrant and native-born alike. Federal labor law may prohibit this, but companies already treat the cost of legal battles, reinstatement and back pay as a cost of doing business. Many consider it cheaper than signing a union contract. So the real need is to strengthen protection for labor rights for all workers, not weaken it. But it's clear that retaliatory firings are not a serious violation of the law in the court's eyes.

William Gould III, former chair of the National Labor Relations Board, points out that 'there's a basic conflict between U.S. labor law and U.S. immigration law.' The court has held that the enforcement of employer sanctions, which make it illegal for an undocumented immigrant to hold a job, is more important than the right of that worker to join a union and resist exploitation on the same job.

Jose Castro, the fired worker in the Hoffman case, committed the cardinal sin, according to Rehnquist. He lied to get a job, saying that he had legal status when he didn't.

This is a lie told by millions of workers every year, one conveniently believed by employers when they want to take advantage of their labor. It is only in the face of union activity that bosses suddenly awake to the reality that their workers have no papers (and usually then firing only the union-loving ones.)

But thank God workers are willing to tell those lies. If they weren't, who would do the work? Who would harvest the lettuce for the justices' lunchtime sandwiches, or cut up the cow for their dinner prime rib? Or care for the children of the lawyers who argued the case? Or clean their offices at night after it was argued?

This decision isn't about enforcing immigration law, despite Rehnquist's pious assertion that employers can already be fined for hiring people like Castro. And it's certainly not about enforcing their labor rights.

As always, it's about money. When it becomes more risky and difficult for workers to organize and join unions, or even to hold a job at all, then they settle for lower wages. And when the price of immigrant labor goes down as a result, so do the wages for everyone else. The famous market logic.

A recent study by the Pew Trust counts almost 8 million undocumented people in the U.S. - 4 percent of the urban workforce, and over half of all farmworkers. The flow of workers across the border into those jobs will not stop anytime soon. Over 120 million people already live outside their countries of origin. The National Population Council of Mexico reports that 'migration between Mexico and the United States is a permanent, structural phenomenon ... the intense relationship between the two countries makes it inevitable.'

Even the sacrifice of the rights of those workers by blind justice will not stop people from crossing the border, nor end the need for the work they do. If they are to have legal status, then the door to legal immigration must be opened, and sanctions repealed. But come they will, regardless.

The court's message to them, however, is know your place. Do the work, stay in the shadows, accept what your betters give you, and never think of organizing to challenge the structure that holds you in chains.



David Bacon is a freelance writer in Berkeley, Calif. This article is reprinted from The Nation with permission of the author. He can be reached at dbacon@igc.org