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.