Unionization and the Unauthorized: How the Story of a Long Island Cookie Company Reignited Conversations on Union Labor Protections for Unauthorized Immigrant Employees

In early March 2021, Tate’s Bake Shop, a well-known national cookie company with a factory based in East Moriches, New York, made headlines following allegations that it threatened to deport immigrant employees who were seeking to unionize. The story began in early 2020 when 500 factory workers, a majority of whom are unauthorized, raised concerns about working conditions during the early phase of the COVID-19 pandemic. Later, during the summer of 2020, Tate’s employees reached out to relevant union leaders of Amalgamated Local 298, who subsequently tried to organize the workers. However, before the National Labor Relations Board (NLRB) mailed union ballots to eligible employees, accusations surfaced that Tate’s had threatened to deport any employee participating in union organizing.¹

The allegations against Tate’s, which was sold by the original owner, Kathleen King, to Mondelēz International, Inc. in 2018, reflect a long-standing labor law dilemma that Congress has not yet reconciled with immigration law—namely, how to address unauthorized workers that have been integrated into the American workforce. Unauthorized workers have always been a part of the United States’ workforce, a fact that the pandemic has heightened and emphasized across various essential industries. In 1986, the Immigration Reform and Control Act (IRCA) made it unlawful for an employer to hire, recruit, or refer for work any immigrant knowing that the person is unauthorized to work; to employ any person without verifying his or her work status; or to continue to employ a non-citizen knowing of such person’s unauthorized work status.² The act established an employment verification system that requires the employer to attest that the employee’s work status has been verified by examination of a passport, birth certificate, social security card, immigrant documentation papers, or other proof of work authorization.

Tate’s is not the first company to employ unauthorized individuals and subsequently threaten immigration action after they expressed the desire to unionize. In 2002, Hoffman Plastics Compounds Inc. laid off employee José Castro, an unauthorized worker who had engaged in union-organizing. Initially, the plastics company had hired Castro based on documents that appeared to verify his authorization to work. Upon investigating the layoff, the NLRB found that Hoffman violated the National Labor Relations Act (NLRA) and ordered backpay to be paid to Castro. Per the NLRA, harassment in response to unionization efforts is illegal, and workers are protected under the act regardless of their immigration status.

At a hearing before an Administrative Law Judge (ALJ) to determine the amount of backpay owed to Castro, Castro testified that he was indeed born in Mexico, that he had never been legally admitted to, and therefore authorized to work in, the United States, and that he had been hired by Hoffman only after forging a birth certificate belonging to a friend born in Texas. Based on Castro’s testimony, the ALJ found that the NLRB was precluded from awarding Castro backpay on the basis of a pre-IRCA Supreme Court decision, Sure-Tan, Inc. v. NLRB, (467 U.S. 883), and by IRCA itself, since he was unauthorized. The NLRB reversed the ALJ’s decision with respect to the backpay award, citing its precedent holding that the most effective way to further the immigration policies outlined in IRCA was to provide the NLRA’s protections and remedies to unauthorized workers in the same manner as to other employees. However, in the subsequent Supreme Court case, Hoffman Plastic Compounds Inc. vs. NLRB, the Court ruled in a 5-4 decision that pursuant to IRCA, Castro was not an authorized worker and was thus ineligible to work. Therefore, no back pay could be awarded.

The Hoffman Plastics Compound Inc. v. NLRB ruling was significant in that it found that workers must have work authorization to be eligible for remedies under U.S. labor organizing laws, even when an employer has committed a violation. The ramifications of the ruling are reflected in the allegations against Tate’s Bake Shop. Without a viable remedy under labor law, unauthorized immigrants are not fully protected by those laws. Significantly, the Department of Labor continues to take the position that unauthorized immigrants have rights under other labor laws, such as the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Protection Act. However, any allegations that employers continue to use threats of immigration enforcement to deter workers from advancing their labor rights are further indications that U.S. labor law has not fully reconciled with the fact that unauthorized workers are, despite the employer sanctions efforts of IRCA, integrated into the U.S. workforce, whether that is in the strawberry fields of California or in Tate’s Long Island cookie factory.

Unions have decried this ruling, noting that when immigrant workers are unable to exercise their rights, employers may see an incentive to recruit those workers over U.S. workers to evade labor laws. Likewise, immigrant advocates have argued for Congress to address this dilemma. First, as BPC has called for repeatedly in the past, Congress needs to work together in a bipartisan manner to address the status of unauthorized individuals currently residing within the United States. A majority of these individuals have been in the United States for decades, and majorities in the United States support granting them legal status bringing the current unauthorized population (and employers who hire them) into compliance with U.S. labor law.

Second, Congress could ensure that unauthorized workers’ rights to unionize and collect damages are protected under the law. In its original form, the NLRA guaranteed these rights, but the passage of IRCA complicated them, and the 2002 Supreme Court decision regarding the Hoffman Plastics case overturned them. House Democrats have made recent steps at legislation in this area, having introduced the Protecting the Right to Organize (PRO) Act in March 2021 to remedy some of these issues. The bill passed with a 225-206 vote, with five House Republicans joining Democrats in favor of the bill. Major provisions of the bill would forbid employers from interfering with or influencing union elections; would prevent an employer from using its employee’s immigration status against them when determining the terms of their employment; and would establish monetary penalties for companies and executives that violate workers’ rights. President Biden supports the legislation. However, the bill has drawn sharp criticism from the U.S. Chamber of Commerce and other business groups, who have argued that should the bill be signed into law, it would subsequently undermine worker rights³ and ensnare employers in unrelated labor disputes.

While it seems unlikely that the PRO Act would pass the Senate in its current form, addressing this seeming contradiction between labor and immigration law is necessary. Leaving two major sets of laws relating to employment in the United States in conflict is untenable in the long run. The fact that almost two decades since the Supreme Court ruling, we still see labor abuse allegations, such as those at Tate’s, are further evidence of the need for Congress to act.