A company is required to bargain with a union, even though the majority of the workers who elected it were undocumented workers, rules a split panel of the D.C. Court of Appeals. The company had argued that undocumented aliens are prohibited from unionizing because they do not qualify as “employees” under the National Labor Relations Act.

Although the Immigration Reform and Control Act makes it illegal to employ undocumented workers, the Court says that it was possible that Congress “still intended that the NLRA apply to such aliens.” The Court observes that “there is absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of ‘employee’ includes undocumented aliens.”

Circuit Judge Brett Kavanaugh dissented from the opinion, saying that he would hold that an illegal immigrant worker is not an employee under the NLRA “for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.” Agri Processor Co. Inc. v. NLRB