Days without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act
59 Pages Posted: 11 Oct 2007
The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages.
Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning of the NLRA. There are rich issues extending beyond the prima facie protection of employee participation in the rallies, however. Traditionally, employees "intermittently" engaging in concerted work stoppages could lose whatever protection they enjoyed under the NLRA. It might be argued that repetitive immigration rallies could similarly strip employees of protection. It is also possible to characterize rallies resulting in work stoppages as unlawful "secondary activity," if the rallies are sponsored by labor organizations and "enmesh" neutral employers.
The significance of the rallies being classified as NLRA-cognizable conduct goes beyond the entitlement of individual employees to remedies for discharge or of employers for injunctions to suspend or forbid the rallies. There are systemic considerations at play deriving from deep tensions between the immigration and labor law regimes. Federal labor law could in some instances protect participation in immigration rallies and in other instances prohibit the rallies as unlawful. The article argues that when addressing these issues legal actors should not abandon the labor law model, designed as it is to carefully regulate mass, work-related protest potentially injurious to the national economy, for a risky and untested amalgam of federal and state immigration law enforcement. The conflicts with federal labor law generated thereby could and should be avoided.
Keywords: immigration rallies, labor law, immigration law, preemption, injunctions
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