Category Archives: National Labor Relations Board

No Back Pay for Illegal-Alien Workers

The National Labor Relations Board has grudgingly complied with a U.S. Supreme Court decision that denied them the right to order a bakery to award back pay to a group of illegal workers. The employees had worked for the bakery for eight years and were fired after complaining about the treatment they received from a supervisor.

The Mezonos Maven Bakery had not asked the workers for documentation before they were hired, according to the NLRB, which previously had ordered the company to offer them reinstatement and pay them for lost wages and benefits as part of a settlement agreement.

The order was upheld by the the U.S. 2nd Circuit Court of Appeals, but the company later argued it could not offer reinstatement because of a 2002 U.S. Supreme Court decision. 

According to the NLRB’s press release:

A three-member panel of the Board – Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Brian Hayes – issued the unanimous decision in Mezonos Maven Bakery, with Member Craig Becker recused. The Board cited broad language in the Supreme Court decision, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002), which made clear that “awarding backpay to undocumented workers lies beyond the scope of [the Board’s] remedial authority, regardless of whether the employee or employer violated” the Immigration Reform and Control Act of 1986 (IRCA). View the decision here.

In a concurring opinion, Chairman Liebman and Member Pearce agreed that Hoffman is controlling authority and thus precludes backpay here.  But they reviewed the policy implications of that result, writing that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.” Law-abiding employers who must compete with immigration-law violators also may be harmed, they wrote. 

“We would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct,” they wrote. 

Hayes, the sole Republican on the board, “did not join his colleagues’ critique of that decision, expressing his view that ‘it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.’ ”

For a bit more information on some efforts by the NLRB and Department of Labor that some critics say are designed to make it easier for unions to organize, see this HREOnline‘™ story.

And here’s an article written for HREOnline™ by Marvin Weinberg, an attorney with Fox Rothschild, that addresses some of the social-media implications of interfering with employee speech. And note, please, such implications could effect all organizations — whether or not their employees are unionized.

More Opposition to the NLRB’s Actions

The HR Policy Association added its collective voice to those opposing the recent actions of the National Labor Relations Board. The HRPA, which represents more than 325 large employers, called on Congress to limit the NLRB’s activities “either through changes in the statute or in the funding of the Board.”

Some limitations have been set forth in legislation proposed in the House of Representatives by Tim Scott, a Republican from South Carolina, called “Protecting Jobs from Government Interference Act.” (I wrote about it and some other voices calling for the Obama administration to reduce its anti-business activities in Coping — or Not — with Government Regulations.)

In a letter (PDF) sent on July 27 to “key members” of Congress, Dan Yager, chief policy officer and general counsel of the HRPA, writes that the NLRB’s actions “discourage companies from opening and expanding operations in the United States, thus hurting hiring opportunities that are key to job growth and economy recovery.”

Yager lists these are “the more objectionable recent actions” of  the NLRB:

• Proposed changes in the rules governing union representation elections, including a substantial shortening of the election period from the current median of 38 days to as little as 10 days. This change is being proposed even though unions already win two out of every three elections conducted by the NLRB.

 • The issuance of a complaint by the NLRB General Counsel against Boeing for engaging in honest and open discussions with its union regarding the location of a new line of production.

 • Consideration of a fundamental change in the rules governing the identification of units of employees within a workplace who will vote on and potentially be represented by the union.

 • Expansion of the Board’s authority to certain critical aspects of non-union workplaces, such as alternative dispute resolutions, under the guise of protecting “concerted activity” by employees, even where union-related issues are not involved.