Absurd case shows mess caused by illegal hirings

‘Too bad they both can’t lose.”

That was former Secretary of State Henry Kissinger’s comment on the Iran-Iraq War, which broke out in 1980 and lasted for nearly eight years.

His observation and the same kind of contempt for the behavior of the participants come easily to mind when we take a look at the legal battle between Agriprocessors and the United Food and Commercial Workers union.

Agriprocessors is the largest kosher meat-processing company in the United States. Its plant in Postville, Iowa, has for some time been the scene of conflict with the federal government, primarily over the hiring of illegal immigrants, but also violations of child labor laws. A recent raid there by Immigration and Customs Enforcement resulted in the arrest of 389 workers, 302 of whom have already pleaded guilty to either immigration violations or other criminal charges.

Agriprocessors is not the first, and certainly not the only, company in America to hire illegal immigrants, or to become dependent on them for its profitability. Still, there is no doubt that, as they say, they “took it to the next level.” Since 2002, for example, the Social Security Administration has notified the company of over 3,000 discrepancies in employee identification numbers and records.

But it was in Brooklyn, New York that the Agriprocessors story climbed to the comic opera stage. The company operates a small plant there and about three years ago workers voted, 15-5, to join the UFCW. The company subsequently refused to recognize the union, saying that it had “discovered” that seventeen of the twenty workers who voted were illegal aliens and had no right to join the union. These workers were fired and replaced — with, the union claims, other illegal immigrant workers.

The National Labor Relations Board saw it differently, citing a 1984 Supreme Court decision that, it says, affirmed the right of illegal immigrant workers to join unions. The company challenged that ruling but the U.S. Court of Appeals in Washington sided with the NLRB.

Now Agriprocssors is asking the U.S. Supreme Court to hear their argument that the 1984 ruling should be reversed. It is basing its case on the changed view of illegal immigrants — including enforcement — and on the passage, in 1986, of a federal law making it a crime to hire illegal aliens.

So now the stage is set. We have a company with a history of hiring illegal immigrants, pleading to the U.S. Supreme Court for a ruling that would get rid of the union but also, as a logical, if unintended, consequence, make the firm guilty of a crime. And on the other side we have a union that, while not conducting itself in quite the unsavory manner as its adversary, still wants to organize illegal immigrant workers, something that common sense would tell us would itself be illegal. And, as an accounting subplot, there is the issue of illegal workers paying dues so that they can enjoy the benefits of such things as a pension. Oh, wait, that’s not going to happen with all that false documentation.

Well, at least while they are working they can contribute, just as they pay into Social Security, with no hope of ever collecting anything in return. The Social Security Administration has over $660 billion in its “Earnings Suspense File” account, which is where payroll tax payments from illegal immigrants usually end up. How much money from illegal immigrant workers’ pension contributions might be in union suspense or holding accounts is anybody’s guess.

The 1984 Supreme Court decision — Sure-Tan, Inc. vs. NLRB — that is now at the center of this opera is itself more than a bit messy. After a pro-union vote, the employer turned in its own workers to the immigration authorities. As a result, six of the seven workers involved in the vote left the U.S. in order to avoid deportation. The NLRB said that the employer’s actions were an unfair labor practice — an improper “constructive discharge” —and the court agreed.

For those totally disillusioned with election year politics there is a Web site business that will sell you a yard sign that proclaims, “Too Bad They Can’t All Lose.” And while I don’t share that view of politics, it is difficult to shake that same feeling about this legal case. It is very hard to find any heroes.

Still, it would be very helpful for the U.S. Supreme Court to take on the thankless task of deciding this matter, if only to clarify what needs to be done by the Congress to set things straight. After four decades of bi-partisan avoidance of the illegal immigration issue, it’s not surprising that the law is messy too. It’s time to clean it up.

James McCusker is a Bothell economist, educator and consultant. He also writes a monthly column for the Snohomish County Business Journal.