Lareau on Mezonos Maven Bakery, Inc.

Lareau on Mezonos Maven Bakery, Inc.


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 meddling.

Development of the Law

Sure-Tan and Its Progeny

In 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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