In this Emerging Issue
Analysis, Peter Lareau reviews the development of the law as it relates to the
authority of the National Labor Relations Board to award backpay to
undocumented workers terminated in violation of the National Labor Relations
Act. In its August 9, 2011 decision, Mezonos Maven Bakery, Inc., a
three-member panel of the Board held the Supreme Court's decision in Hoffman
Plastic Compounds, Inc. v. NLRB precluded any such remedy. Two members of
that panel reached that conclusion along reluctantly and announced that they
were prepared, in future cases, to consider other creative remedies to
accomplish what they feel federal policy should be in such cases. The author
suggests that resolution of the issues raised by the case are better left to a
Congressional overhaul of immigration policy.
In Mezonos Maven Bakery, Inc.,
three-member panel the National Labor Relations Board ("Board") held
that it lacked authority to award backpay to an undocumented worker discharged
in violation of the National Labor Relations Act ("Act"). However,
Chairman Liebman and Member Pearce joined in a lengthy concurring opinion,
expressing their strong disagreement with Hoffman Plastic Compounds, Inc. v.
NLRB ("Hoffman"), the Supreme Court decision that dictated
the result in Mezonos - and, by implication, the Congressional policies
enforced by the Supreme Court's decision. The concurring opinion concludes by
positing yet another remedy (that Chairman Liebman and Member Pearce are
prepared to consider in a future case). That remedy would further their view of
the appropriate policy choices while, in their minds, not offending Hoffman.
This article, after examining the development of the law regarding the status
of undocumented workers under the Act, parses the reasoning for the Board's
decision in the case and briefly illuminates the concurring opinion. It closes
by suggesting that the difficult policy issues posed by the case are within the
domain of Congress and should not fall victim to the Board's administrative
Development of the LawSure-Tan and Its
ProgenyIn Sure Tan, Inc. v. NLRB, an employer,
upset by the union activity of undocumented workers, reported them to the INS,
which conducted an investigation and arrested them. To avoid deportation, the
workers then voluntarily left the country. The Board concluded that, by
reporting the employees to the INS because of their union activity, the employer
violated Section 8(a)(3) of the Act. To remedy the violation, the Board ordered
the employer to reinstate them upon their legal reentry into the country and to
pay them backpay, the amount of which would be determined in a subsequent
compliance proceeding. The Seventh Circuit agreed that the employees were
protected by the Act, but modified the Board's order in several respects,
including directing the Board to award a minimum of six months' backpay.
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