Hoffman Plastic Compounds, Inc. v. National Labor Relations Board

The hosts discuss Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (NLRB), a 5-4 decision in which the Supreme Court denied a worker back pay that he was owed after being unlawfully terminated for union organizing, citing his lack of authorization to work in the United States. The decision completely rejected the ruling of the NLRB, guidance from the Department of Justice, standing immigration law, and basic human decency.

A podcast where we dissect and analyze the Supreme Court cases that have rendered our liberties completely immobile, like a cargo ship turned sideways in the Suez Canal

0:00:00.0 Speaker 1: We'll hear argument now, No. 00-1595, Hoffman Plastic Compounds Inc versus the National Labor Relations Board.


0:00:11.8 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about Hoffman Plastics v NLRB, a 2002 case, which a worker was fired from his job at a manufacturing plant after campaigning for a union. When the case came before the NLRB, they determined that Hoffman Plastics had violated labor law by firing the worker, but during the hearing, it was revealed that he did not have authorization to work in the United States, which Hoffman Plastics then used to appeal the case to the Supreme Court. The Liberal justices argued that if the court ruled in favor of Hoffman Plastics, other employers could take advantage of it to abuse undocumented workers. In the end, the Court did rule in Hoffman's favor, holding that undocumented workers cannot recover lost wages under to the law. This is 5-4, a podcast about how much the Supreme Court sucks.


0:01:08.2 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have rendered our liberties completely immobile like a cargo ship turned sideways in the Suez Canal.

0:01:17.2 Rhiannon: Yes.


0:01:22.0 Michael: Yes.

0:01:23.2 Peter: I am Peter, I'm here with Michael.

0:01:25.7 Michael: Hey, everybody.

0:01:26.7 Peter: And Rhiannon.

0:01:27.6 Rhiannon: What's up everybody? Hello.

0:01:29.2 Peter: Today's case is Hoffman Plastics v National Labor Relations Board. This case is about one of the many ways in which our laws fail to protect undocumented people in this country from being systematically and systemically abused by this country's oligarchic institutions. In this case, a company was unknowingly employing an undocumented worker, Jose Castro. Company fired him for participating in union activities, and it's illegal to do that, by the way, you can't fire people for participating in union activities. So Castro sues under the National Labor Relations Act, and he wins and is awarded back pay, which is the legal term for wages he would have earned if he hadn't been fired, but the court, in a 5-4 decision written by Mr. Chief Justice William Rehnquist, says that he can't be paid his lost wages because he was not legally working in the first place. This case is important because it is the intersection of anti-immigrant and anti-labor sentiment, two cornerstones of the conservative agenda. We get to see them just crash together like two enormous waves in the middle of an ocean, and it's depressing, it's dark.

0:02:54.4 Michael: I just wanted to give you guys a heads up on how my brain is operating today.

0:02:58.9 Rhiannon: Please.

0:03:00.6 Michael: I know this guy's name is Jose Castro, 'cause I've read the case and done preparation for this episode, but when Peter said, An undocumented worker and said his name, what I heard is, Who's a Castro? And I was like, "Is that a weird way to refer to Cubans"? As a Cuban should I be offended? And it's like, "What the fuck is up with Peter?" And It took me a minute.

0:03:25.4 Peter: This fucking Castro Che Guevara over here.

0:03:28.0 Michael: This fucking Castro. [chuckle] So get excited for this episode guys.

0:03:35.7 Rhiannon: Thanks for joining us Michael. [chuckle]

0:03:39.6 Peter: Alright. So Rhi, you want to walk us through some of the background here, let's do it.

0:03:45.9 Rhiannon: Sure. Yeah. Quick note on some terminology, vocabulary used, I think we'll be using the word undocumented interchangeably with describing people as working without authorization, just a heads up that we'll be saying those things throughout the episode, but they mean something a little bit different. If you're undocumented, then it's said that you are here without any papers that establish your legal presence in the United States, if you just don't have work authorization, that's different, you might be here on some sort of legal status, like on a visa, but you don't have authorization to work legally. So as we shift into the facts of this case, Hoffman Plastics, I think a little brain exercise might be useful. So, put yourself in the place of a supervisor or the owner of a manufacturing business, say for example, you own a poultry factory, lucky you, that sounds great. Now, if you're imagining this scenario realistically as it would actually play out today, you as the owner of this poultry factory, know for a fact already that many of your employees do not have work authorization in the United States. That's just the reality, right? Many of your employees are undocumented or do not have actual legitimate work authorization.

0:05:07.4 Rhiannon: Now, you hear a rumor one day that a small group of your employees is talking about unionizing. Now you're a big boss, big bosses don't like that, that's gonna be expensive for you. You're gonna have to pay for more healthcare and maybe beef up your workers compensation schemes, and you're probably gonna have to increase wages if your employees unionize, that's no good for you. You know what would be cheaper though? You could fire one of these employees...

0:05:36.1 Michael: Make an example of them.

0:05:37.2 Rhiannon: That's right. You know that they might get deported. Everyone else in your business, all the other employees watch that happen and are understandably terrified because they would also face deportation, and so everyone kinda settles down, so to speak on the unionization efforts. And that is very near the situation that happens to Jose Castro in this case. In the late '80s, Jose Castro works for Hoffman Plastics compounds in California. This is a plastics making factory.

0:06:12.1 Michael: It's like a chemical plant, isn't it?

0:06:13.7 Rhiannon: No, they manufacture plastics.

0:06:16.4 Michael: Do they?

0:06:16.7 Peter: Maybe we should stick with chicken.

0:06:17.9 Rhiannon: They manufacture polyvinyl resins and plastic pipework. I'm looking at it bros. Okay. [laughter] Alright. Now, at the time that he's hired Jose Castro does not have authorization to work legally in the United States, but he presents, at the time that he's hired, an authentic US Birth Certificate, but it's for somebody else. Several months after Castro was hired, the United Rubber Cork, Linoleum, and Plastic Workers of America, started an organizing campaign at Hoffman Plastics. Now, Castro hears about the organizing campaign and he decides to join up, and he supports the unionization efforts at Hoffman Plastics by doing stuff like handing out flyers to other employees, talking about the benefits of unionizing, that kind of thing. Now, when Hoffman Plastics finds out that Castro is participating in unionization efforts, they fire him along with several other pro-union employees. Now that is... If you know anything about Labor Law, that is retaliation, it was in direct retaliation for the unionization efforts, and so Castro takes his case to the NLRB, the National Labor Relations Board, and the NLRB for their part agrees with Castro and says that he was fired for participating in pro-union activities in unionization efforts at Hoffman Plastics, and they award Jose Castro two remedies.

0:07:51.1 Rhiannon: First, if he gets damages, he's awarded back pay, like Peter said, which is the wages he would have earned if he had not been unlawfully fired from Hoffman Plastics and had maintained his job there. And the second is the NLRB also ordered that Hoffman Plastics reinstate Mr. Castro's employment there. Now, a little bit later on down the line, as the administrative law process moves on, Castro actually divulged in an administrative law hearing that he did not have authorization to work legally in the United States. So it's at that point that Hoffman Plastics found out that Mr. Castro had been technically working illegally in the US, and that's when they jump on this opportunity and begin to appeal the order to award Mr. Castro back pay. This is what gets appealed all the way up to the Supreme Court. They were saying that they should not have to pay back pay to Mr. Castro because he is undocumented and was working illegally to begin with.

0:08:54.0 Peter: So let's talk a little bit about the law here. The National Labor Relations Act is a law passed in the 1930s that protects workers with a focus on protecting unions and union organizing. And under that law, you can't fire or otherwise interfere with the workers who are engaged in union organizing. So the court's opinion here is at its heart, very simple, Castro was saying he was illegally fired and he should be paid the wages that he would have earned if he hadn't been. That's how damages work in employment cases.

0:09:28.0 Rhiannon: That's right.

0:09:28.8 Peter: But William Rehnquist, he essentially admits that Castro was illegally fired, but says, "Look, because he was not legally employed, he can't recoup his lost wages." And that's really the whole majority argument here. Now, I think some people might find some intuitive appeal in this argument. Not legally employed can't recover wages. So before we go on, I think it's important to understand that this rule is completely made up by the court.

0:09:56.6 Michael: Absolutely.

0:09:57.4 Peter: The statute in question does not say anything about this. Our Immigration Laws do not say anything about not recovering back wages under Employment Laws. Contracts are not just null and void because they're made with an undocumented person. All of the relevant Federal Agencies, including the immigration-focused agencies have said that this man should be allowed to recover the money. The court is literally just making this up out of thin air. They do cite to a similar case from a few years prior that has a somewhat analogous situation, but the rule in that case was made up too, as some would say.


0:10:31.9 Peter: Doesn't really get you anywhere, in my view. And maybe to paint a clear picture here, there's no question, even among the court's conservatives, that the law protects undocumented people. You can't just assault an undocumented person and not get charged 'cause they're not here legally.

0:10:48.1 Rhiannon: That's right.

0:10:49.1 Peter: And maybe more to the point, you can't steal from an undocumented person and just get to keep what you steal, so why is an employer allowed to do exactly that?

0:11:00.3 Rhiannon: That's right. Yes.

0:11:00.5 Peter: I mean, that's really all this is. This is the court on its own deciding that employers can plainly violate the law if the victim is an undocumented person.

0:11:10.7 Michael: That's right.

0:11:11.3 Peter: That's it.

0:11:11.7 Rhiannon: Right. Yep.

0:11:12.2 Peter: Now, you might think that this is sort of unfair because the undocumented person in this case is getting punished, but the employer is sort of getting off the hook. But Rehnquist says, "No, actually. The employer is experiencing, "significant" sanctions for its conduct."

0:11:29.2 Rhiannon: Significant.

0:11:31.7 Peter: So you might wanna know, dear listener, what are those sanctions?

0:11:37.9 Michael: I lost my shit when I read this paragraph.


0:11:41.0 Peter: There are two. The first is a cease and desist telling them not to violate the National Labor Relations Act in the future.

0:11:49.5 Rhiannon: Okay.

0:11:50.1 Michael: That means they received a letter. A sternly-worded letter.

0:11:53.6 Peter: A letter that says, "Don't do it."


0:11:56.8 Peter: The second is that they have to post a notice for employees explaining their NLRA rights.

0:12:03.4 Michael: They have to write a letter.


0:12:06.1 Peter: I am not exaggerating this. These are the two penalties...

0:12:09.2 Michael: That's it.

0:12:10.2 Peter: For violating the National Labor Relations Act. A letter that told them to stop violating it and a notice that would be posted in a break room explaining their rights. And the Chief Justice of the Supreme Court, described those as significant sanctions. A cease and desist among lawyers is almost an in-joke for how little it means. It's almost always a bluff, It's something you send because there is no real consequence that you can enforce, and so you just send a letter being like, "Stop doing it." If the penalty for violating a law is a letter that says, "Stop violating the law," it just feels...


0:12:51.9 Peter: It feels like that's not a real penalty at all.

0:12:54.6 Rhiannon: I have questions about the accountability. Right. [laughter]

0:12:57.3 Michael: Look. Back in the day, when teachers could like wrap your wrist with a ruler or whatever, that's a more significant penalty.

0:13:03.5 Peter: And that slap on the wrist is literally the colloquial term for a punishment that doesn't match.


0:13:09.6 Michael: That's exactly right. That's... That's where it's going. And the other thing is the incentives here are wild because like Rhiannon was saying earlier on, you sort of know if you work in certain industries or work at certain areas that some of your employees are undocumented, but this sends a clear signal that you can treat undocumented workers poorly, which encourages employers to turn a blind eye and maybe even purposefully hire more undocumented workers. Because this is a workforce, as long as they provide some bullshit form of ID, some sort of worker authorization, even if you know it's false, that's all the better, because that means you know you have this hanging over them at any time and you don't have to follow labor regulations, you don't have to follow OSHA. You don't even have to necessarily pay them minimum wage, which is what has happened in this country as a result of this decision.

0:14:09.1 Rhiannon: Exactly.

0:14:09.7 Michael: So the incentives here is to hire more undocumented workers and to treat them worse.

0:14:15.6 Rhiannon: Exactly.

0:14:16.1 Michael: That's what this decision encourages.

0:14:18.1 Rhiannon: My example up top about, if you are the boss of a place like this and you can simply just fire somebody rather than listen to the demands of a unionized and organized workforce, you're allowed to do that because of cases like this, because there is no accountability in labor law, in employment law other than these sort of remedies. Other than the employers themselves being forced and ordered to pay people back wages, to reinstate people's jobs when they've been unlawfully retaliated against by their supervisors. So, yeah, that example up top is absolutely the reality, and it's only so because of... Because the accountability mechanisms in our law aren't even enforced by the Supreme Court.

0:15:08.9 Michael: I don't think this is like some particularly amazing insight, but it's worth noting the NLRA is in a big important law, that had a purpose and this is like kneecapping it, this is like totally subverting the purpose of these laws by making it easier for employers to treat their employees like shit. By selecting a group of employees who they know are without legal revenue.

0:15:37.5 Peter: And maybe we should touch a little bit on the history of the NLRA, the National Labor Relations Act, 'cause I think it's important here for that reason. It was passed in 1935 and came on the tail end of a period that saw probably the most sustained exploitation of workers in American history. From about 1900 through the early to mid-30s. During that time, the Supreme Court had effectively enshrined worker exploitation into the constitution in what was called the Lochner Era, when it allowed employers to require just about anything of their employees by contract. That included long work days, brutal working conditions, a little bit of child labor here and there.

0:16:16.5 Rhiannon: Absolutely.

0:16:17.3 Peter: And it also included the notorious yellow-dog contract in which an employee would sign away their right to unionize. Great depression happens, worker agitation for their rights picks up. The Norris-LaGuardia Act is passed in 1932, it's sort of a precursor to the NLRA. The NLRA gets passed a few years later in 1935, and provides this sort of sweeping protection for workers to organize and forbids employers from interfering with that right. Conservatives have long been concerned with the potential scope of the NLRA. And so they've taken strides to weaken it at every return if they can. This isn't the first time we've talked about the NLRA, if you remember in Epic Systems v. Lewis, which we did six years ago, I think.


0:17:03.2 Peter: The Court essentially said that the worker protections of the NLRA gave way to the Federal Arbitration Act, allowing employers to leverage arbitration agreements to have employees sign away their class action rights. And what we have here is, in many ways, more egregious, because that case was at least ostensibly about two conflicting laws. In this case, the court is setting aside the protections of the NLRA based on its own opinions about what undocumented immigrants do and do not deserve.

0:17:30.1 Rhiannon: That's it. That's right.

0:17:31.5 Peter: And obviously, there's a lot to say about the conservative view of immigrants here, but it's also important to understand that this is part of a broader right-wing effort to atomize workers and stifle the labor movement by telling corporations they're allowed to union bust as long as they're targeting the right people. And it's not just the impact on immigrant workers at this facility, on workers without authorization to work at this facility, it impacts the broader union too. If you're a perfectly, whatever, "legal" worker at Hoffman Plastics and you're trying to unionize and they are targeting your colleagues based on their immigration status and terminating them in order to dismantle or disrupt the union, clearly that impacts those workers. This is bigger than just the rights of these immigrants. And I think that's important to sort of process, that this is... For Hoffman Plastics, it's not just about being racist, that's almost the vessel through which they are union busting.

0:18:34.0 Michael: Right. That's right. And Peter mentioned that the prior case, Epic Systems was about two competing laws, whereas this one is not, and I think the court, they sort of see that and they realize that, and so they try to set up a similar scenario by mentioning immigration laws and specifically the IRCA, the Immigration Reform and Control Act. But here's the thing, like Peter said up top, the IRCA doesn't say anything about this. It does make it illegal for someone to provide false documents...

0:19:07.4 Rhiannon: In order to gain employment, right.

0:19:09.1 Michael: But it provides penalties for that. Those penalties include imprisonment and a fine, but that fine is not your entire wages, right? That is a punishment the court literally just fabricated out of thin air. There's actually a term for that in law when you gain money under some sort of illegal pretense, it's called disgorgement, disgorging someone of their ill-gotten gains. That's not the remedy here, it's just a fine. It's a fine that's gonna be much, much less than what Jose Castro is incurring here. And there's a degree of just straight-up gaslighting, I think in the proper use of that term, by the court, because they use the IRCA as a way of claiming that they are enacting the foreign policy and immigration preferences of the political branches, Congress and the Executive, and saying like, "Look, the NLRA says what it says, but look, immigration law matters," and the IRCA provides this clear statement, that they are totally fabricating, about the way undocumented workers should be treated. But it's gaslighting because, one, again, the IRCA doesn't provide for this penalty at all and it in fact provides for a very different penalty, and, two, because the Department of Justice, which is in charge of enforcing the IRCA disagrees with the court on this.

0:20:45.0 Michael: They put in a brief in this case and said that the National Labor Relations Board is right, that this guy is entitled to back pay, that giving him back pay would further the United States interests in its foreign relations with Mexico and Central America and anywhere else where we might be getting undocumented workers from. And that's the thing, the court is claiming to be enforcing our foreign policy, but it's actually subverting it, and we know because the people in charge of our foreign policy told the court. It's fucking nuts, it's nuts that they did this. And I wanna be clear, it's not just like this is a lib versus conservative thing, it was the George W. Bush administration's Department of Justice that was saying, "This is going to undermine our foreign policy." And it was the court being far more conservative than them and sort of anticipating the right-ward drift on immigration that we've seen in the Republican party since then.

0:21:46.7 Rhiannon: Absolutely.

0:21:47.4 Michael: Bush in 2006 tried to pass a comprehensive immigration reform, and it was their racist base that sort of scuttled that and made him lose support within the party. And since then, we've seen the Republican Party get more and more conservative and more and more reactionary on immigration, and this case is very much a leading indicator of that. And so it sort of anticipates the Trumpian turn of the Republican Party.

0:22:16.8 Rhiannon: Absolutely.

0:22:17.5 Peter: Yeah. It's very true. And I think if you're in your early 20s, you probably don't remember the Bush compassionate conservatism pitch, right? There was an angle coming... Clinton was so successful that conservatives in the early aughts were pitching themselves as like, "We're nice now. We're not like Reagan and all them." They thought they had lost, and they needed to shift left. And that was part of it. The softer immigration stance was part of it, 9/11 disrupts it, [chuckle] that's for sure.

0:22:46.0 Michael: For sure.

0:22:46.4 Peter: And that's why it took till 2006 to get a proposal for immigration reform. But I think that's right, what you currently see in the Republican base is something that hadn't really manifested at the time, and yet you see it coming up at the top of their intellectual movement. From the Supreme Court, you see this prejudice bubbling up before you saw it in the broader politics.

0:23:09.4 Michael: Right. And I think it's a good example of something that we say many times but is a particularly vivid illustration, which is that people like Scalia and Rehnquist, they are very much the base, right? They're not different than some MAGA chud. That's what they've always been, and that's why they were worse [chuckle] on undocumented rights than fucking George W. Bush. They are fucking racist pricks. And here's the thing, is like, I'm ranting about foreign policy, but there's a real purpose for that, there's a reason, which is that the court usually defers heavily to the Executive branch on this stuff precisely because it's the area where it views itself as having the least expertise and the least ground constitutionally to intervene. And it's also why the court often gives Congress and the Executive free hand to be particularly awful to immigrants.

0:24:15.8 Michael: And we've talked about this in a number of cases, Trump v. Hawaii, I think most memorably, which was the muslim-ban case, which is the US's long history of being just fucking awful, awful to immigrants, and the court giving them the green light on that. And here you have the court not... Instead of giving the government a free hand, making it hard for the government to be even pseudo-decent to undocumented workers and being worse than the Executive and Congress. When Congress and the Executive aren't being racist enough in immigration, the court is there to step in and make sure that they are gonna be. It's fucking gross.

0:25:00.1 Rhiannon: Yeah, it's absolutely gross. And let's go to a break.


0:25:07.7 Rhiannon: Hey, everybody. Thanks so much for listening to 5-4. If you've already joined us on Patreon, we hope you enjoyed our premium episode about justice Antonin Scalia. If you haven't joined us yet, come see what you're missing out on. So we have special episodes just for subscribers. Those are gonna be bigger picture, maybe longer episodes than our usual. They'll be a little bit more thematic, so episodes about the justices, constitutional interpretation, like originalism and textualism, all that goofy nerd shit that you like. You'll also get discounts on merch membership in the 5-4 Slack with me and Peter and Michael, and access to exclusive events. We already had a really fun first Q&A Zoom with listeners, so join us. You can support by visiting patreon.com/fivefourpod, and you have to spell out five and four. And thanks so much for supporting.

0:26:10.4 Rhiannon: And we are back. And this case has me thinking about solidarity across movements. And so it's not only that the court here is really spitting in the face, like you said, Michael, the DOJ submitted a brief and said, "The NLRB is right here. We support that decision. This man should get paid his back pay." And William Rehnquist is like, "No, I don't like undocumented immigrants." That's essentially what happened. But this case is also an example, I think, of broadly how the judiciary, the law inserts itself in this country to drive a wedge and class solidarity movements and solidarity between movements. So I'm thinking about immigration movements and the movement for workers' rights more broadly. There were opportunities over the course of history, the union movement for a long time was sort of anti-immigrant in this country, but there are opportunities all of the time for class solidarity and this kind of movement connectivity and growing and building together, and here, the Court spits in the face of that kind of solidarity as well, and the result is less power across the board for all workers, whether you have citizenship or work authorization or not.

0:27:26.8 Michael: Right. And you can see, even if it's not the reality, at least the logic, although I think it is somewhat the reality of the way this pits unionized workers against immigrants, which has become very much a big Republican electoral pitch, because if employers can treat undocumented workers worse, that's gonna dry up opportunities for union jobs. And so unions can see themselves as competing with undocumented workers, and that makes them less powerful.

0:27:56.4 Rhiannon: That's right.

0:27:56.9 Michael: To amplify Rhi's point, it's not just spitting in the face, it's literally dividing and conquering.

0:28:04.5 Peter: And that's a key component of like, I don't wanna conflate conservatism and fascism entirely, but fascist movements where you're constantly looking for an other, and our reliance on identifying an other that you are then pitted against, a key aspect of the GOP's current pitch to working class White people.

0:28:22.3 Rhiannon: That's right, that's right. And this case clearly defines who the other is. That's what this case stands for.

0:28:27.8 Peter: Yeah. So, Michael, you were talking about the sort of cultural moment with respect... And political moment with respect to immigration. I think it's important to put that side by side with the socio-political moment with respect to unions. This case is from 2002, it develops during the '90s, and I think it's important to understand the cultural sentiments from that period. The 1970s see the beginnings of a sharp decline in union participation in this country, as neoliberal consensus develops and Democrats aligned with certain business interests, rather than labor. And the '90s and early 2000s, while not the lowest point for unions from a membership perspective, that would be now, by the way, were in a lot of ways the peak of the anti-union cultural movement. Corporate interests were able to frame unions in a way that sort of acutely resonated with particularly American brain diseases. The two-fold idea that unions benefit the lazy while punishing the productive really triggered whatever mutant strain of the Protestant work ethic Americans are working with. And it resonated especially in the '90s when the economy was booming and we're just right after the Soviet Union's collapse, and in general, people sort of thought things were just gonna be great forever. That was the '90s vibes.

0:29:45.9 Michael: Is that what the End of History was about?

0:29:47.6 Peter: That is what the End of History is about, yeah. The Fukuyama idea. Yeah.

0:29:51.2 Michael: Yeah. That literally social development has reached its final form.

0:29:56.1 Peter: Yes. That politics are over. We're just sort of haggling over the details. That was sort of the prevailing political driver in the '90s. And maybe the most notable thing about the prominent anti-union rhetoric you see is that it's become, over the course of the last several decades, increasingly clear that it's just objectively false. It's not that I disagree with the thrust of it or something, It is objectively incorrect. Non-unionized workplaces have not allowed productive employees to succeed, they've resulted in productivity rising every year on average, while wages have stayed largely stagnant. That's not an opinion about unions. That's a fact about unions. And private sector union membership at the time of this opinion was about 9%, now it is about 6%. A lot of people are sort of optimistic after the pandemic that there's been some positive development. That positive development ticked union membership up 0.1% between 2019 and 2020, most of which, I have to say, if I'm being cynical, is probably because of layoffs disproportionately impacting non-unionized employees. Corporations have taken the gray area created by this web of Supreme Court decisions and used it to sort of get union busting down to a science. They hire consulting firms whose specialty is to talk to employees and make them nervous about the prospect of unionizing, and it's extremely effective.

0:31:22.4 Peter: We're seeing it right now in Bessemer, Alabama with the Amazon unionization effort, one of the most public in recent memory. 30 years ago, this would have been, I think, an open and shut labor win, but corporations have been whittling down the ability of labor to organize effectively, in large part because the Supreme Court has made the National Labor Relations Act so vague and weak. If the court was interpreting the law as it should, Amazon wouldn't be able to bring in union busting consultants or suspiciously target organizers for discipline or bribe their employees to do pro bono anti-union PR on social media, which is a real thing that Amazon does all the time. So this case is both about the othering of undocumented immigrants in this massive campaign against organized labor in this country, which has been just tremendously successful, and it's only been in recent years, with this rising left wing of the Democratic party and an entire generation of people who have done nothing but lose in the workplace for year after year, and are thinking basically, anything else must be better, surely, surely, unionization must be better and the anti-union rhetoric is just a little bit less effective on these younger generations.

0:32:39.4 Peter: I do think there's optimism there, but the fact that Amazon can just bring in fucking consultants that talk to employees and explain to them why unionizing would be a bad choice, and that is not considered interfering with organizing, under the National Labor Relations Act, it blows my fucking mind, it blows my fucking mind.

0:33:00.8 Rhiannon: After this decision, and as a result of the sort of web of these judicial decisions, like Peter said, if you do not have work authorization in the US and you are retaliated against in this way, for organizing, for pro-union efforts on the job in the US, you are not entitled to back pay anymore, not just under the NLRA, but under title 7, under the FLSA, the Fair Labor Standards Act. So this whole system, where the only way to hold accountable, employers and supervisors and corporations, to ensuring workplace safety standards, wages that go up with the cost of living, greater healthcare protections, all of that, the only system that we have, in employment and labor law, to hold them to account, the air is completely taken out of it.

0:33:49.6 Michael: It is worth mentioning maybe, that the Democratic Party is starting, I think maybe because of the left ward pull or just what's going on in this country, with workers and trying to find inroads with white working class or whatever, or maybe it's just Joe Biden, being that sort of guy, but it does feel like the Democratic Party is maybe a little more pro-union now, than it has been in the past. Under Obama, there's a big union law called the card check law, that died on the vine, even though they had 60 votes in the Senate, and now, they're pushing the PRO Act, which is this very union-empowering act, despite having much narrower margins. And it's worth noting that the PRO Act actually closes this loophole created by Hoffman, and says that just because a worker is undocumented, that doesn't prevent them from getting back pay, if they are fired in violation of labor laws.

0:34:49.5 Rhiannon: That's right.

0:34:50.3 Michael: It's definitely something that would be great if passed and the PRO Act has 45 co-sponsors, I think, and is getting close to a vote, Biden put it in his big infrastructure bill, so there seems to be a real effort on it.

0:35:04.5 Rhiannon: Yeah. Do you know that Texas is the only state that does not require workers compensation?

0:35:09.3 Michael: I didn't know that.

0:35:10.3 Peter: I did know that, yeah.

0:35:11.5 Rhiannon: Yeah, yeah. No workers compensation whatsoever, in Texas. It's fucking wild.

0:35:15.8 Peter: That's cool. That's dope as hell. I love that there's always one of these outlier states, where you're just like, "Huh, I didn't know you could do that. I didn't know you could just deny people, workers comp. It's crazy."

0:35:26.1 Rhiannon: It's wild.

0:35:26.7 Peter: Incredible, the innovation you're seeing out of Texas.


0:35:30.2 Rhiannon: It's something we've hinted at, throughout this episode, but just to make it explicit, this is just an absolutely egregious and extremely clear example of judicial activism. Again, what conservatives and so-called originalists say they hate from judges. This is a case where Congress has spoken, the executive branch has spoken very clearly, the NLRB has spoken very clearly, about what should happen in these kinds of cases.

0:36:00.8 Peter: Literally every stakeholder, except for this company, has spoken out in favor of this guy.

0:36:06.7 Rhiannon: That's exactly right. And these five conservatives on the Supreme Court at this time, come out... It's like, "Who are you holding water for? For Hoffman Plastics, my guy? When everybody else has told you they don't want the case to go this way?" Like I said, it's egregious and it's egregious in that it's not only otherising and racializing the workplace in a way to de-humanize undocumented immigrants. We've said it throughout too, this doesn't protect the American worker either. What this decision does is, allows employers to permanently create under-classes at the workplace, that are cheaper to hire, that are easier to fire, and they're not being held accountable in any way, for those decisions.

0:36:52.7 Michael: Right, it's writing penalties into the immigration law that don't exist, and it's writing exceptions into our labor laws that don't exist. It's absolutely the pinnacle of legislating from the bench.

0:37:05.6 Rhiannon: That's right.

0:37:06.0 Peter: Yeah. There are a whole section of industries, restaurants, manufacturing, especially, that rely on what they know is undocumented labor.

0:37:17.6 Rhiannon: Agriculture.

0:37:18.4 Peter: Yeah, there's a ton of them. And Rhi had hinted up top, they are in a situation where management knows that if you just dug a little bit more aggressively than you're digging, you will be forced to let a huge chunk of your workforce go.

0:37:31.9 Rhiannon: Right. Because they don't have work authorization.

0:37:34.3 Peter: Right. And that means it's illegal for the companies to employ them. That means that these people are particularly vulnerable. Not only can they have their employment leveraged, like any employee can have their employment leveraged by their employer, but their existence in this country is being held in the hands of some fucking company and that is the sort of regime that exists today. Everyone knows that this happens, everyone in these industries... At the top of these industries benefits from it, and yet when they are put into the right circumstance will leverage the vulnerability of these people that they profit off of and exploit it to increase their bottom line by some fucking nominal amount. This is the difference between minimum wage and probably a few bucks more and health benefits, that's what this unionization effort in the the late '80s would have been about, but there's something particularly disgusting about watching the people who knowingly benefit from this system, from this structure, leverage their vulnerability of the people they are exploiting to union bust. It's whatever the opposite of intersectionality is, that's what this is. It's fucking vile.

0:38:46.5 Michael: Yeah, and I think it's good we've talked a lot about the laws and we've talked about employers and unions and stuff, but I do think it's good to take it back to individuals and the people who are harmed by this and the atmosphere they live in, and to remember that that's what this does, is, creates a world where... Here are people coming to the US because their home countries are in turmoil or don't offer them any significant opportunities, and they're hoping for something better, and we are putting them in a permanent state of fear and a state of just complete... For lack of a better word, vulnerability or... It's like they've got the fucking Sword of Damocles hanging over their head every day. Every day, their boss, if they're not happy with them could ruin their lives, absolutely ruin their lives. Not just dock their pay or fire them, get them fucking evicted from this country. It's horrific, it's a horrific way that our economy runs.

0:39:55.3 Peter: I have one last thing to say, which is that we haven't mentioned the dissent, and that's 'cause it's written by Justice Pryor, which means it's like just really sort of dull, inadequate work that any second year attorney could do. Retire you bum motherfucker, that continues to be our position.

0:40:12.9 Michael: Yeah. Yeah. No, I did wanna mention the dissent, I'm glad you reminded me, because it hit...

0:40:15.8 Peter: You're welcome.

0:40:16.5 Michael: There's not a single point, I think we hit in this, that the dissent misses, but it does it in the fucking most milk-toast way with the almost toothless language that... Man, it anticipates so much of what has happened in the way this will change workplace conditions and encourage undocumented workers to come by creating more job opportunities for them, from employers who are happy to take on a workforce they can treat poorly, but the opinion lays it out in a way, it's like some academic debate bullshit, like it should be righteous and it's not, it's absolutely not.

0:40:57.2 Peter: We've hated on Ginsburg in the past but she would have done a much better job. This is her forte.

0:41:01.7 Rhiannon: Yeah, absolutely.

0:41:02.7 Michael: Yeah, she's good on labor issues, she knows how to write with values in mind.

0:41:07.8 Rhiannon: Absolutely, yeah.


0:41:12.9 Peter: Next week, patreon-only episode on the Insular Cases, a series of decisions from 1901 about the territories that we acquired during the Spanish-American War. I don't know if you guys know about Puerto Rico.

0:41:31.3 Rhiannon: I do, yes. Are you talking to me or the listeners?

0:41:34.2 Peter: No, you.

0:41:34.6 Rhiannon: Oh yeah. No, I'm aware of Puerto Rico. Thanks Peter.

0:41:36.9 Michael: I've been there, it's a cool country.

0:41:39.8 Peter: It's a great entirely separate nation.


0:41:43.5 Peter: Some questions you might have? You're a casual fan of Puerto Rico, might be like, Why can't they vote? What's going on there? On election night, they'll be like, Puerto Rico voted for Biden.

0:41:52.2 Rhiannon: But it doesn't matter.


0:41:53.0 Peter: It does not count. It's like on Survivor when someone plays an idol, it's like, does not count. The idol has been played against Puerto Rico. That's a joke that all of our listeners will love and relate to.


0:42:07.0 Peter: So, we thought it might be useful to cover the cases that explain exactly why territories are relegated to the second tier status that they are, and why perhaps it might be useful to elevate them to the status of actual citizens who live in a real place where they can exercise rights and things like that. All those cool things that are in the constitution, I don't know if you guys know about that.

0:42:29.4 Michael: I've heard of it.

0:42:31.7 Peter: Follow us on twitter @fivefourpod. Subscribe at patreon.com/fivefourpod, and get access to all sorts of other cool content, such as our Slack and special patreon-only events, patreon.com/fivefourpod, all spelled out. Thanks, and we will see you next week if you're cool enough to subscribe.

0:42:53.2 Michael: Bye-bye.

0:42:54.2 Rhiannon: Bye.

0:42:56.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.