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Bench Memos

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Not Kosher



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The D.C. Circuit today issued a decision denying relief to an Brooklyn employer, a wholesaler of kosher meat, that refused to collectively bargain with a union formed by its employees.  The employer’s complaint was simple:  after the union election was held, the company ran the social security numbers of the employees that voted in the election, and found that most of the numbers were bogus (they might have tried that before hiring these folks, but that’s a different story entirely).  So it argued to the D.C. Circuit that it should not be required to recognize a union that had been formed on its premises principally by workers who had no business working in the U.S. in the first place.  Not good enough, said the D.C. Circuit.  Relying on a 1984 decision of the Supreme Court, the majority (Judge Tatel joined, somewhat reluctantly, by Judge Henderson) concluded that the National Labor Relations Act defined “employee” to include illegal labor; the Court was not swayed by the fact that, two years after that decision, Congress enacted sweeping legislation prohibiting employers from hiring illegals.  Judge Brett Kavanaugh, a Bush appointee, dissented, contending that the 1986 immigration reform changed the rules of the game.

So the net result?  Employers can’t hire illegals, but they have to collectively bargain with them once they get their foot in the door.  That hardly sounds kosher to me.  (Hat tip to Howard Bashman’s How Appealing site for posting the decision). 



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